(11) The services used for communications purposes, and the technical means of their delivery, have evolved considerably. End-users increasingly replace traditional voice telephony, text messages (SMS) and electronic mail conveyance services in favour of functionally equivalent online services such as Voice over IP, messaging services and web-based e-mail services. In order to ensure an effective and equal protection of end-users when using functionally equivalent services, this Regulation uses the definition of electronic communications services set forth in the [Directive of the European Parliament and of the Council establishing the European Electronic Communications Code4]. That definition encompasses not only internet access services and services consisting wholly or partly in the conveyance of signals but also interpersonal communications services, which may or may not be number-based, such as for example, Voice over IP, messaging services and web based e-mail services.
(11a) The protection of confidentiality of communications is crucial also as regards interpersonal communications services that are ancillary to another service; therefore, the processing of electronic communications data in the context of the provision of such type of ancillary services should be covered by this Regulation.
In all the circumstances where electronic communication is taking place between a finite, that is to say not potentially unlimited, number of end-users which is determined by the sender of the communications, e.g. any messaging application allowing two or more people to connect and communicate, such services constitute interpersonal communications services. Conversely, a communications channel does not constitute an interpersonal communications service when it does not enable direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s). This is for example the case when the entity providing the communications channel is at the same time a communicating party, such as a company that operates a communications channel for customer care that allows customers solely to communicate with the company in question. Also, where access to an electronic communications is available for anyone, e.g. communications in an electronic communications channel in online games which is open to all persons playing the game, such channel does not constitute an interpersonal communications feature. This reflects the end-users’ expectations regarding the confidentiality of a service.
4Commission proposal for a Directive of the European Parliament and of the Council establishing the European Electronic Communications Code (Recast) (COM/2016/0590 final – 2016/0288 (COD)).