The explosion of digital services delivered via telecommunication networks is creating a challenge for the old regulatory framework. Voice, text, photos-videos are offered by services via the availability of connectivity services by network operators on the Internet. We are talking about Skype, WhatsApp and Google on our smartphones, which are able to offer communication systems to costumers at a very low cost with extremely handling software.

By contrast, some problems arise by confusing terms and conditions, a lack of availability concerning emergency services and blurred personal data protection for users and end-users. This regulatory asymmetry is causing a significant distortion in market competition because Electronic Communication Providers are bearing the cost of this conflicting regulation. Thus, the key question is: how should the regulation of Over-The-Top (OTT) digital services be managed in the Internet age?

Over-the-Top Services (OTT): Definition and Market Perspective

First of all, is: “the buzz expression for services carried over the networks, delivering value to customers, but without any carrier services provider being involved in planning, selling, provisioning, or servicing them – and of course without any traditional telco booking revenue directly from them”.

To have a broader idea, VoIP (Voice over the Internet Protocol) services across devices are worldwide from 572 million in 2013 to over 1.5 billion at the end of 2018.�� For instance, WhatsApp is expected to to allow use for its 600 million active users.

On the whole, it is a big threat for telecom operators by lowering their income from calls and SMS services; nevertheless, this is very convenient for users and consumers by expanding their product choice. In the EU, legislation to engage appropriate market regulation are almost obsolete, threatening the public interest as well failing to adequately protect consumers in a framework of distorted competition .

Regulation and Legislation in EU: State of the Art

For telecommunications regulation in EU, it is necessary to start with the New Regulatory Framework (NRF) . This new formula is required for all forms of communication or transmission technology. Due to the fact that the old concept of telecommunication becomes obsolete, we are approaching to new definitions such as Electronic Communication Services (ECS). If the NRF establishes a unique regime for conveyance or conduit services, the area of content is regulated differently by EU law, which distinguishes between ‘audiovisual media services’ (AMS) and ‘information society services’ (ISS). Recital no.9 of the Directive provides that ISS are covered by the which includes services that are more than ‘wholly or mainly in the conveyance of signals’. By contrast, AMS deal with provision or exercise of .

According to Walden: “The boundary between this latter activity and the provision of electronic communication services is particularly blurred, given the potential variety of interpretations of the phrase “mainly in the conveyance of signals” (Walden, at 147). From one side, the ISS definition posits its limits concerning new business models into the digital market (e.g. OTTs). On the other side, the ECS definition has recently come under discussion by the Commission to remove ex ante specific obligations for traditional voice services, looking for progressive reduction of regulation and approaching on more competitive models. (recital no. 1-6 and recommendation no. 3)

If interpreted narrowly, OTTs would not be considered an ECS because it does not consist of a ‘conveyance of signals’ which requires a transmission service that users must subscribe or have access to. In other words, we uncover a paradox: e-mail services provided by telecommunication operators belong to ECS, whilst email services supplied by OTT providers belong to ISS. From a consumer’s point of view however this service is exactly the same, when they have no interest about the different technical definitions that apply.

How Should the Regulation of Over-the-Top (OTT) Digital Services Be Managed in the Internet Age? Proposed Solutions

In seeking a solution to this, illustrates the EU’s political stance on this issue. From this, we can identify three main solutions:

• The assumption ‘conveyance of signals’ in ECS on the Framework Directive should either be modified or deleted. In line with the Recommendation on Relevant Markets we continue to search for a new definition that includes: services previously were ISS and are subsequently OTT; digital services ��that are -at least apparently- provided for free; as well as traditional calls and SMS/MMS messaging;
• Reasoning from a cross-sector perspective focused on privacy and data protection. General Data Protection Regulation should represent an alternative to resolve this challenge introducing several obligations described in the E-Privacy Directive . To be precise GDPR does not exclude ECS from its scope, so, both GDPR and EDP are referring to ECS. This double regime pushes up overlaps, uncertainty and lack of transparency for operators and users. According to art. 86 (1)-(2) of GDPR, almost some parts of EPD should be deleted;
• Security obligations and guarantees (e.g. emergency calls, sector specific privacy rules, number portability, etc.) provided by Framework Directive to telecom operators should be maintained and incorporated into a . Providing horizontal guarantees to consumers and preventing regulatory arbitrage might be fundamental to restore fair competition between telecom operators and OTTs.

Finally, sustain that if network operators are suffering financial losses due to consumers switching from traditional services to OTTs – in absence of an immediate and proportionate measure to fix this situation – they could invest in market opportunities such as network sharing and making partnerships with providers.

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“Dear User, your Facebook account has been temporary deactivated”. This statement represents one of the typical Facebook (FB) notifications to users in the event of flagged content or general malfunctions. There could be a lot of reasons for receiving such a notification, of course. However, one of the most interesting situations in social media is represented by the conflict between Zuckerberg’s social network and part of its users who are used to creating accounts with pseudonyms, or “fake names”, different from their real identity.

Many social networking sites permit users to escape from their real-life identities. They have the possibility of creating a made up of photos, videos and other content, but do this by choosing and using their own online names. Nevertheless, this is not the case with Facebook, which has been cracking down on the names people are using on the website, and forcing individuals to use the names that are on their national ID cards.

An interesting research on the topic was conducted by as scholars at the Carnegie Mellon University in the USA. They observed the behavior of more than 4.000 university students who joined Facebook to keep in touch with colleagues. With particular interest in profile names, the research described three different possibilities when joining: 1. Real name (name appears to be real), 2. Partial Name (only a first name is given), and, 3. Fake Name (an obviously fake name). The results of the evaluation suggested that, on one hand, 89% of all names appear to be realistic, and likely the true names of the users. On the other hand, almost 8% of names seem to be obviously fake. In other words, the vast majority of Facebook users tend to provide their fully identifiable names, although they shouldn’t be obliged to do so by the site itself.

Among those affected by this “freezing effect” on their accounts was Micheal Williams, better known as and as a member of the Sisters of Perpetual Indulgence (an LGBT organisation renowned for drag performances), who became a symbol for people whose accounts continue to be suspended or deactivated, starting a real public campaign against Facebook’s policy. Sister Roma’s story represents just one of the many cases involved in the fight against FB’s name policy. As stated, with the exception of “Fan Page” account, the use of pseudonym or “fake name” is prohibited under FB policy and regulation. However, the thought of legal perspective in this area is still unclear, mainly that of the human rights. Thus, this raises the question: to what extent does the FB’s Terms and Conditions on name satisfy the law underlying the human rights principle?

��In line with the positions taken by international organisations such as the United Nations and the Council of Europe, the FRA (European Human Agency for Fundamental Rights) supports the view that, despite the specific challenges posed by the increasing use of digital technologies, it is essential to ensure that are promoted and protected online in the same way and to the same extent as in the offline world. We are mainly talking about right to privacy, freedom of expression and right to non-discrimination.

As a result, actual effort should be invested in order to improve the status quo, looking for appropriate use of digital social media and respect for diversity between people. Concretely speaking, some solutions can be proposed:

-������������ Need for Transparency: this represents the primary step. Rules, conditions and exceptions must be clear and respected. It goes without saying that different cases have to be considered differently as well as the similar cases must be treated equally;

-������������ New Terms and Conditions: rules and safeguards provided by FB should be respected by them. Actually, conditions for the appropriate use of the platform appear too vague, and inappropriate;

-������������ Modify the Option to Report: this proposal probably represents the most important and effective change. A very interesting solution has been put forward by Sister Roma. Infact, she thinks that a simple solution would be to remove the option to report an accound just for the use of fake names. In other words, reporting should be based on behaviour and not on identity.

If FB was not able to set this points, different social media would be ready for the competition challenge. A lot of people��leaving FB are looking for a smaller, simpler and safer social network. Though there are other Facebook-alternatives, including Diaspora and Google+, but many are now flocking to . There are why Ello has become the new trend social network nowdays. First of all, it is advertisement-free, secondly it takes care of its users’ privacy (no tracking activities nor selling personal information to third parties) and last but not least, freedom of expression: users can chose to represent themsleves freely using “fake names” as well as pseudonyms.

According to the facts, might we talk about a social media revolution against “Facebook’s supremacy” into the cyberspace? Let’s see next future developments.

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