[LV] Electronic Communications Law comes into force in Latvia
Ieva Andersone, Linda Reneslāce, Krišjānis Knodze
On 27 July 2022, the new Electronic Communication Law (ECL) which transposes the European Electronic Communications Code (EECC) entered into force in Latvia.
Specifically, by transposing the EECC, the new ECL:
- enhances the deployment of 5G networks by ensuring availability and competition for investments
- benefits and protects end-users by: ensuring access to the network, guaranteeing better cybersecurity, increasing the level of protection of citizens in emergency situations, and increasing the transparency of service providers, as well as benefiting end-users in other ways
- adds additional types of services to be regulated
Services subject to the ECL
According to the ECL, an electronic communication service is a service, usually provided for remuneration, which consists of the transmission of signals using electronic communication networks and which covers one of the following services: an internet access service, an interpersonal communications service, or another service which wholly or mainly consists of the transmission of signals. As required by the EECC, the ECL implements new concepts in electronic communication services like interpersonal communication services, and number-independent and number-dependent interpersonal communication services. As a result, the electronic communication services subject to the ECL are defined more broadly compared to the previous regulation.
Thus, number-independent service providers, for example, WhatsApp, are also considered electronic service providers. These providers do not connect to a public switched telephone network like number-based providers, but work with an internet connection. By taking into account the development of number-independent actors, the EECC also places certain obligations on them; however, the scope of obligations is not as wide as it is for number-based providers.
Specifically, obligations apply to number-independent service providers in cases where public interest requires the application of obligations to all types of services. In particular, these are requirements regarding security provisions, cooperation with the regulator, transparency towards customers and data protection requirements. Therefore, ECL places certain obligations not only on number-based service providers but also on number-independent service providers.
The new ECL also delegates powers to the Cabinet of Ministers and Public Utilities Commission of Latvia (PUC) to issue secondary legislation to supplement the rules of the ECL. For example, the Cabinet of Ministers has to determine the procedures for managing numbering, establishing and maintaining the numbering database; and, for example, the PUC must issue rules on informing end-users on increased tariff calls and rules on information to be included in the electronic communication service contract summary.
The secondary legislation was adopted during 2022 and is now in force. Until then, the secondary legislation issued on the basis of the previous Electronic Communications Law remained in force.
Challenges regarding data retention requirements applicable to electronic communications service providers
The EECC was meant to be transposed into national legislation by 21 December 2020. However, the majority of EU member states, including Latvia, failed to transpose Directive 2018/1972 establishing the European Electronic Communications Code in time.
The new ECL was finally accepted in Latvia in its final reading on 2 June 2022. However, the law did not enter into force until 27 July as it had failed the final phase: presidential proclamation. The president sent the law back to the Saeima (Parliament of Latvia) emphasising that the initial version, and specifically, Sections 99, 100 and 101 of the ECL regarding the retaining of service users’ data and data transfer to supervisory authorities, carried risks to the right to privacy and was incompatible with EU law and established EU case law: i.e., the provisions mentionedan obligation on network operators, when providing number-dependent services and internet access services, to retain certain personal data for a period of 18 months and to provide this data to supervisory authorities upon their request.
According to the Transitional Provisions of the ECL, the Cabinet of Ministers was obliged to submit another draft law to ensure the compliance of these articles with EU law and established EU case law. The deadline for submitting the draft law was set as 31 December 2022.
However, at the moment of writing this article, the draft law has not been submitted to Parliament.
- Electronic Communications Act
- Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code
This article has been published in IRIS Legal Observations of the European Audiovisual Observatory.