Telecommunication
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Which acts apply?
Under Danish law, the operation of electronic communication networks and the provision of electronic communication services are regulated extensively. Some of the significant acts are listed here:
- The Danish Act on Radio Frequencies: The act concerns the use of radio frequencies and authorisations regarding such use,
- The Danish Act on the Establishment and Joint Utilization of Masts for Radio Communication Purposes: The act governs the right to access other providers’ masts for radio communication purposes,
- The Danish Act on Cable Laying Access and Expropriation for Telecommunication Purposes: The act allows the Danish IT and Telecom Agency to initiate expropriation, under the provisions on expropriation procedures regarding real property, for the purpose of laying cables and setting up associated facilities for the use of electronic communication networks and services included in public communications networks.
However, the most significant act is the following:
The Danish Telecommunication Act
A new act concerning electronic communication networks and services (the Telecommunication Act) entered into force on 25 May 2011. In an overall perspective, the Telecommunication Act regulates the provision of network and transport of communication in networks.
Amongst other things, the purpose of the act is to promote the establishment of a well-functioning, competition-based market in order to provide electronic communication networks and services. The end-users are given a number of specific options and they are guaranteed access to several basic services on reasonable terms and at a reasonable price. Moreover, the end-users are guaranteed basic rights in connection with agreements on the delivery of electronic communication networks and services.
The new Telecommunication Act is based on two underlying purposes:
Firstly, a number of EU directive requirements which accompanied the adoption of a new set of directives in November 2009 concerning telecommunication were implemented.
Secondly, the new Telecommunication Act provides a more flexible, simple and future-orientated legislation. The Telecommunication Act is accompanied by the commencement of a number of new and revised executive orders. However, the new Telecommunication Act is mainly a continuation of the previous legislation as regards content.
Implementation of EU regulation
The EU regulation which is implemented with the new Telecommunication Act consists of several directives: The Framework Directive, the Access and Interconnection Directive, the Authorization Directive, the Universal Service Directive, and the Data Protection Directive. Apart from these directives, additional changes have been implemented in light of two regulations concerning the co-operation between national authorities with the responsibility for the enactment of legislation concerning consumer protection, the Body of European Regulators for Electronic Communications (BEREC) and its support office.
What about end-user rights?
As a significant change, the Telecommunication Act has led to an update of the legislation concerning end-user rights:
- New provider notion/definition
- Authority to issue rules concerning:
- The right to a contract
- Network neutrality
- Processing of personal data
- Portability of telephone numbers
New provider notion/definition
The provider notion/definition in the new Telecommunication Act distinguishes between commercial providers and other providers. Providers who have electronic communication as their main activity are categorized as commercial providers. The categorization of a provider as being commercial entails that the provider has a number of special rights and duties.
As a main rule, hotels, cafés, supermarkets and camping grounds (which, for example, provide wireless internet for their customers) are not categorized as commercial providers. However, under certain circumstances, they may be categorized as providers. Even though they do not have the same rights and duties as commercial providers, this means that they must still comply with several obligations under the act, including a duty to register information concerning internet trafficking (logging).
Authority to issue legislation – the right to a contract and network neutrality
The new act contains an authority for the Minister of Science, Technology and Development to adopt rules concerning end-users’ (consumers as well as enterprises) right to a contract which must also comprise certain new conditions. If the minimum requirements are not observed, there is a risk that the contract cannot be enforced.
Furthermore, the act authorizes the Danish IT and Telecom Agency to secure network neutrality. This means that the end-users must have access to an open and neutral internet without priorities from the provider. No limitations must be made as regards specific providers while it is permissible, to a certain extent, to prioritize traffic regarding services. The area is regulated by an industry agreement.
Handling of personal data – fines and duty of notification
The provisions regarding processing of personal data are mainly consistent with the previous Telecommunication Act. However, the new Act now makes it possible to enforce fines for the violation of legislation concerning handling of personal data.
In addition, there is a new rule concerning the duty of notification in cases of a violation of personal data security which are expected to cause a violation of personal information, or privacy, for end-users. Furthermore, there are new rules concerning consent from end-users to store information (cookies).
A security breach will be considered a violation if there is a risk it might result in theft of identity, fraud or damage of reputation etc. The present regulation will be implemented in line with the Minister of Science, Technology and Development’s authority to legislate through statutory orders. The implementation of the cookie-order is delayed due to a revision of the requirement of consent from end-users to store information (cookies) which stems from the EU-directives.
Portability of numbers within one business day
Section 27 of the Telecommunication Act establishes new rules on portability of telephone numbers (clients’ right to include phone numbers when changing phone company).
Portability must happen within one business day (i.e. by the end of the business day following the business day when portability was requested) and may not wait for a fixation or notice period to end. There is, however, still a possibility for the end-user to enter into an individual agreement regarding a specific date for the portability. The area is now regulated by an industry agreement.
Is there a regulatory authority?
The Danish Commerce Agency (in Danish: Erhvervsstyrelsen) (”DCA”) is the main regulatory authority in Denmark for electronic communication. Amongst other things, it supervises whether or not operators and providers comply with the Telecommunication Act and the Telecom orders together with other regulations regarding electronic communication.
DCA can make decisions under the Telecommunication Act and the Telecom orders, which may be appealed to the Telecommunications Consumer Board (in Danish “Teleankenævnet”) or the Telecommunications Complaints Board (in Danish “Teleklagenævnet”), as the case may be.
Also, the Danish Consumer Ombudsman (in Danish “Forbrugerombudsmanden”) supervises the telecom area with respect to consumer protection.
Furthermore, the Danish Radio and Television Board (the “RTB”, in Danish “Radio- og TV-Nævnet), is of relevance within the telecommunication area. RTB is the independent regulatory authority in charge of supervising the implementation of the Danish broadcasting legislation. The RTB issues licenses to private national and local broadcasters, monitors whether private and public broadcasters are fulfilling their legal obligations and administers the grants for non-commercial local radio and television.
Does an enterprise need a licence or any other authorisation to operate electronic communications networks or provide services over them?
No licence or other authorisation is required in order to operate electronic communications networks or provide services over them in Denmark.
However, a license is required for the use of radio frequencies and a fee has to be paid to DCA for frequency usage and frequency charges which partly consist of usage charges and partly of fixed spectrum charges.
Finally, the Danish Marketing Practices Act, the Danish Consumer Agreements Act and the Danish E-commerce Act contain provisions which prevent and restrict Internet and email communication used for marketing and advertising purposes within the area of telecommunication in Denmark.
The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above.