German Court: Google's Gmail Is A Regulated Telecoms Service

For the past five years, Google and the German telecommunications regulator, the Federal Network Agency (Bundesnetzagentur – BNetzA), have been arguing whether Google’s email service Gmail qualifies as a telecommunications services as defined by the German Telecommunications Act (Telekommunikationsgesetz – TKG). BNetzA eventually ordered Google to notify the service (i.e., it considered it to be regulated), and now, the Administrative Court of Cologne upheld this view in a judgment of November 11, 2015, which was published only last week.

The judgment is the first time a German court dealt with the legal qualification of over-the-top (OTT) communications services. Although the court’s reasoning is disputable, and Google has the option to appeal the judgment up to the Federal Administrative Court, the decision nevertheless comes at a time when OTT services are generally attracting increased attention from regulators and policy makers, and where “traditional” telcos