As users of electronic communications services, we consume the service we buy all the time. We do so when watching our favourite film or series, calling our friends or browsing the internet.
As consumers we are mostly concerned with the immediate reward of the service. Little do we understand what goes on behind the service. In truth we don’t need to know a lot. But the branch of law protecting consumers in this area hinges a lot on the right to information, obliging consumers to understand their rights and obligations when buying electronic communication services.
On December 11, 2018, the European Parliament and Council issued Directive (EU) 2018/1972 establishing the European Electronic Communications Code, which enhances protection for end-users in light of technological and market developments. End-users include micro-enterprises, small enterprises and not-for-profit organisations.
Electronic communications services would typically cover TV distribution (not content), telephony and internet services. Yet, the Code has included in this definition interpersonal communication services which are ‘number-independent’, such as WhatsApp, Skype and Facebook Messenger. The Code requires providers to give clear and comprehensible information on the provider, type of service, price, duration, etc.
This is something consumers are already accustomed to. However, this information will now have to be provided in a contract summary template, which will be adopted by the Commission by December 21, 2019.
This means that as from December 21, 2020, the deadline for transposition into national law, all European consumers will be provided with the same template and the same set of information for similar services. This should encourage comparability between providers, so that the consumer would know what to expect.
Member States must also have an independent means of comparing services offered by different providers. The Malta Communications Authority already offers www.telecosts.com, which is substantially very similar to what the EU is mandating, although we should see some changes.
But is information enough? Are consumers sufficiently protected simply by having clear, unambiguous information about the product they are about to purchase. The legislator clearly thinks not.
The Code regulates the subscriber contract itself and limits its duration to a maximum of 24 months. Member States may adopt laws that provide for shorter maximum contractual periods; the legislator in Malta might push the market to go for shorter terms.
After the contract is automatically prolonged, the end-user can terminate within one month or a shorter notice period depending on local law. The Code will also require operators to inform consumers that their contract is to be automatically prolonged and to provide “best tariff advice” to the end-user.
This is strikingly different from the generic obligation to give best tariff information to consumers at least annually. One understands advice to be more specific than mere information. However, both are required to be the “best”, a standard difficult to assess from an objective legal point of view.
Are consumers sufficiently protected simply by having clear, unambiguous information?
Just as in the sale of goods there are rules protecting consumers when the goods are defective, the Code says that where there is significant discrepancy between actual performance and that indicated in the contract, the consumer is entitled to remedies under national law, including the right to terminate the service without charge.
This provision does not apply to the procurement of internet access services or number-independent interpersonal communications. However, Regulation (EU) 2015/2120 on open internet access has measures to ensure non-discriminatory treatment of traffic. Speed and quality-of-service parameters must be provided in subscriber contracts, as well as remedies where there is a significant discrepancy in performance.
Exceptionally, in contracts for electronic communications services, the operator may modify contractual conditions. They must notify consumers of the modifications and their right to terminate the contract if they do not accept the new conditions. The current law obliges operators to notify at least one month in advance but the Code gives Member States the option to increase this by up to three months.
Locally, this will largely be dependent on how the legislator, together with the regulator and different stakeholders, view the needs of consumers. This right to terminate does not apply if the proposed changes are exclusively to the benefit of consumers, are purely administrative, have no adverse negative effect or are directly imposed by EU or Maltese law.
Consumers of telephony services (both fixed and mobile) value highly the fact they can port their number when switching from one service provider to another. The Code says the switching process needs to be efficient, simple and free, and must be done within one working day.
The right to port will be retained for at least one month after termination of a contract. If the porting process fails, the end-user will be able to reactivate the number and all related services, until porting is successful. When porting pre-paid services, unutilised credit shall be refunded.
The Code introduces similar principles for switching of internet access services, albeit subject to some technical limitations. It may not always be possible to ensure continuity of service when competing providers utilise different technologies and terminal equipment, as is the case in Malta. Nonetheless, these principles should foster increased co-ordination between internet service providers.
The increased dependence on the internet is evident in the fact that the universal service obligation includes the requirement for an affordable, adequate, broadband internet access service. This bolsters the current universal service requirement issued by the Malta Communications Authority. The notion of ‘adequate broadband’ in the Code should therefore result in an upward revision of the minimum speed requirement of 4Mpbs.
What is affordable is debatable, but the Code gives guidance on how to measure affordability taking into account mostly low-income earners or consumers with special social needs.
In the coming months more details should emerge, especially when the plans for transposition are issued by the MCA.
Dr Theresienne Mifsud is Partner with Fenech Farrugia Fiott Legal, specialised in telecommunications and media law.
This is a Times of Malta print opinion piece