MEMORANDUM CERTIFIED SMS SERVICES UK ADVICE October 2009 1
The two issues that this Memorandum address are: 1. A summary of the UK telecoms regulatory requirements to provide the Certified SMS service in the UK. 2. A summary of the likely requirements for UK courts to accept SMS messages and Lleidanetworks certificates as evidence. 2
1. Summary of the UK telecoms regulatory requirements to provide the Certified SMS service in the UK a. Application of UK telecoms regulatory framework to Certified SMS service The general EU telecoms regulatory framework, including the Framework Directive (2002/21/EC) and the Authorisations Directive (2002/20/EC), applies in the UK. The framework is implemented in the UK primarily under the Communications Act 2003 1. Under the Communications Act, the UK regulator Ofcom has power: to require notification to Ofcom by providers of electronic communications services ( ECS ) and electronic communications networks ( ECN ) (Communications Act, ss 33-37); and to impose conditions on ECS/ECN providers (Communications Act, ss 45-50). Ofcom has not exercised its power to impose a general notification requirement on ECS/ECN providers, and many providers may begin service without notification to Ofcom. Given the nature of the Certified SMS service, Lleidanetworks would have no obligation to notify Ofcom before providing this service in the UK (except to obtain telephone numbers as described in section 1.b below). Ofcom regulates most ECS/ECN providers primarily through General Conditions of Entitlement ( GCoE ) 2 with which all ECS/ECN providers must comply (to the extent applicable to them). The GCoE do not require UK ECS/ECN providers to be companies established in the UK. Provided Lleidanetworks does not have a physical location in the UK it is not necessary from a company law perspective to register a branch in the UK. Under the GCoE, the Certified SMS service (as you have described it to us) appears to be a Public Electronic Communications Service ( PECS ) i.e., an ECS that is provided so as to be available for use by members of the public 3. An ECS is defined as:- any service consisting in, or having as its principal feature, the conveyance by means of an Electronic Communications Network of Signals, except in so far as it is a Content Service. 1 See http://www.opsi.gov.uk/acts/acts2003/ukpga_20030021_en_1. 2 See http://www.ofcom.org.uk/telecoms/ioi/g_a_regime/gce/cvogc150807.pdf. 3 See GCoE Part 1, section 1 for service definitions. 3
It is likely that Ofcom would consider certain aspects of the Certified SMS service to be a Content Service, which is defined as:- so much of any service as consists in one or both of the following (a) the provision of material with a view to its being comprised in Signals conveyed by means of an Electronic Communications Network; (b) the exercise of editorial control over the contents of Signals conveyed by means of such a network. Content Services are outside of the GCoE regulatory framework, and are subject to very limited obligations under the Communications Act. Nevertheless, it is our view that Ofcom would consider the Certified SMS service (at least in part) to be PECS that is subject to the GCoE. We also note that the Certified SMS service would not be Publicly Available Telephone Service ( PATS ), which would be subject to stricter requirements under the GCoE than PECS. In order qualify as PATS, a service must provide capabilities for originating and receiving national and international calls and access to Emergency Organisations through a number or numbers in a national or international telephone numbering plan (GCoE Part 1.1). Ofcom has not in general considered electronic messaging services like SMS to constitute calls, and we see no reason why it would do so in this case. b. Application of General Conditions of Entitlement to Certified SMS service Various provisions of the GCoE are applicable to providers of PECS, including conditions 2, 9, 11, 14, 17, 18, 19, 20 and 21 4. Below, we summarise requirements in three areas that may be applicable before Certified SMS services commence in the UK: telephone numbering (Condition 17), codes of practice and dispute resolution (Condition 14) and minimum contract terms (Condition 9). Lleidanetworks would need to comply with the remaining PECS conditions in the course of providing the Certified SMS service e.g. Condition 2 (use of standard interfaces), Condition 11 (accurate billing and billing records), Condition 21 (quality of services). These other conditions appear unlikely to impose significant restrictions on the Certified SMS service. Nevertheless, we urge you to review the full set of GCoE PECS conditions in order to familiarise yourself with the UK telecoms regulatory environment. Telephone Numbering (Condition 17). Telephone numbers under the UK National Numbering Scheme ( NNS ) may be allocated to a PECS provider like Lleidanetworks. Lleidanetworks has applied and obtained mobile numbering capacity from Ofcom, effective form 2th of July 2009. Codes of Practice and Dispute Resolution (Condition 14). PECS providers that offer service to individual consumers and/or businesses with 10 or fewer employees must, with respect to such customers: 4 Ofcom guidelines summarising these requirements are available at http://www.ofcom.org.uk/telecoms/ioi/g_a_regime/gce/gcoe/. 4
adopt a code of practice Annex 1 to Condition 14 contain Guidelines for codes of practice; and join an approved dispute resolution scheme Ofcom has approved dispute resolution schemes provided by Otelo (http://www.otelo.org.uk) and CISAS (http://www.cisas.org.uk). Minimum Contract Terms (Condition 9). PECS providers that offer service to individual consumers are required to include certain minimum terms in their contracts with consumers. 5
2. Summary of the likely requirements for UK courts to accept SMS messages and Lleidanetworks certificates as evidence In order to assess the validity of Lleidanetworks certificates in UK courts, below we first consider the general requirements for documentary evidence, and then the specific rules regarding electronic signatures and formation of contracts. a. Documentary evidence in court proceedings The principle set of rules for the conduct of litigation in England and Wales are the Civil Procedure Rules ( CPR ). Please note that different sets of rules apply in Scotland and Northern Ireland although those jurisdictions are likely to follow a similar approach regarding electronic communications in accordance with EU principles. CPR 31.4 gives a broad definition as to what constitutes a document for Court purposes and provides that:- document means anything in which information of any description is recorded. The related Practice Direction confirms that:- This extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been deleted. It also extends to additional information stored and associated with electronic documents known as metadata. Courts in England and Wales therefore accept SMS text messages as documentary evidence of communications and there are numerous cases where SMS text messages have been referred to in Court proceedings and relied upon as evidence. Provided sufficient technical evidence is available establishing the chain of a relevant SMS message being sent, transmitted and delivered, UK courts are likely to be willing to accept Lleidanetworks certificates as evidence of delivery of the relevant messages. b. Electronic signatures The EU Electronic Signatures Directive (99/93/EC) applies in the UK. Part II of the Electronic Communications Act 2000 implements the directive in the UK and contains provisions to ensure the admissibility of electronic signatures and related certificates in court. Electronic signatures and related certificates are therefore admissible in evidence in UK legal proceedings in respect of any question regarding the authenticity or integrity of an electronic communication. 6
Under the Electronic Communications Act 2000, an electronic signature is as anything in electronic form which is incorporated into or logically associated with an electronic communication and which purports to be used for the purposes of establishing the communication's authenticity or integrity. Certification is defined as the certification by any person that the signature or the process applied to it is a valid means of establishing the authenticity and/or integrity of the communication/data. c. Formation of contracts generally UK and EU laws on electronic signatures do not however apply to certain types of special contracts (for example transfers of land, mortgages and powers of attorney) where specific formalities are required for such contracts to be executed as deeds. Please let us know if you would like more information regarding these types of contracts. For most other types of contracts it is well established under English law that such contracts can be oral or in writing, express or implied, so there should be no difficulty in establishing the formation of contracts by exchange of SMS messages. However, the content of such messages should be carefully drafted to ensure that Lleidanetworks clients have certainty as to the terms of any contracts, and because some types of contracts are subject to additional requirements (e.g. financial services and other contracts with consumers). * * * 7