In some cases, when there is an item or solution that is being widely utilized and relied upon by customers and users, not only in Egypt but also across the world, it commands a sense of legality almost immediately. There is a perception that what is happening must be taking place in compliance with a solid legal framework, precisely because it is so widespread.
This takes place with an even deeper sense of conviction if the pertinent laws are enacted sometime before the introduction of the item or solution and/or before it has acquired its accompanying persona of global use and reliance.
However, this can be misleading and there are cases of very popular activities and practices, that have become integral to the way we do business, operating without a supporting legal structure. As legal practitioners, we need to be aware of this, for the sake of our clients. Nowhere do I encounter such issues so much as when it comes to telecommunication.
Sometimes, what is most obvious is also least obvious.
Conferencing
Remember in the recent past, when having a video conference call could not be done without a satellite connection, a special set of equipment, a special venue and the cost of an arm and a leg?!
Well, luckily this is not the case anymore. If you are operating in one or more of most countries within the MENA region, you could cautiously thank Microsoft’s Skype for such a change of events.
Video & Web Conferencing
Video conferencing provides audio/video communication between two or more locations. Web conferencing provides audio/video communication between two or more locations, with some additional features to conduct meetings, training sessions and/ or presentations. For a successful connection and service, both conferencing solutions require specialized equipment at both ends, such as IP Phones, PCs and conference monitors, which must be type approved by the National Telecommunication Regulatory Authority (the “NTRA”).
Video conferencing used to be conducted through satellite communication equipment, but nowadays video and web conferencing are mainly data-based solutions. In video conferencing and web conferencing, audio and video are transmitted via Voice Over Internet Protocol (“VOIP”) and/or other protocols via the Internet.
Alternatively, video conferencing and web conferencing can be provided through a combination of media, whereby audio is transmitted via Public Switched Telephone Network (“PSTN”) and video is transmitted through the Internet, but this is rarely seen nowadays. Neither conferencing solution has dedicated licenses. They are enabled through data lines, which are offered through licensed Internet service providers (“ISPs”). An example of such video and/or web solutions in Egypt is the conferencing equipment of Cisco, Huawei, Polycom and others, all of which is type approved by the NTRA and reliant on data line(s) provided by licensed ISP(s).
Unlike the vague, and occasionally heated, position which the NTRA adopts towards voice and video calling over the top (“OTT”) applications such as Skype, Tango and Viber, the Internet Protocol (“IP”) pertaining to video and web conferencing could run through a virtual private network (“VPN”) that is approved by the NTRA by implicit communication.
It is believed that the NTRA is handling the regulation of video and web conferencing as a matter of highly acceptable practice rather than a fully legal and/or riskfree service.
Such a highly acceptable practice and the sense of legality of such conferencing solutions in Egypt came as a result of the following:
- Data based video and web conferencing solutions existed and gained wide use and popularity after the enactment of Law No. 10 of 2003 on Telecommunication Regulation (the “Law”).
- The NTRA grants type approvals for equipment and hardware that are globally known to transmit audio/ video transmission through the Internet.
- Upon the request of ISPs and their corporate customers, the NTRA grants implicit clearances for the IPs utilized through the aforementioned equipment and hardware.
- There are some dated reports by the NTRA on the availability of data-based conferencing solutions in Egypt.
- The widespread practice of ISPs and their allowance of conferencing solutions traffic over their networks, including those networks of ISPs directly and/or indirectly owning International Gateways (the means for providing international calling services), such as Telecom Egypt and Etisalat.
Having explained the above, it should be highlighted that with the broad wording of Articles No. 21 and 72 of the Law and the regular practice by the NTRA of providing no direct, written clearances on conferencing solutions beyond the aforementioned, passive or implicit clearances, the Public Prosecution may press charges against an ISP availing itself of the conferencing solutions mentioned hereinabove, mainly with regard to the component of allowing audio connectivity through the Internet to locations outside Egypt, which, according to Article No. 21 and 72 of the Law could be categorized as illegal bypassing of licensed International Gateways: a crime which is punishable by either fining or imprisonment of the legal representative of the violating entity – or both.
This is not the only concern, as once again the broad wording of the Law could have the corporate customer or subscriber of a condemned ISP as the latter’s accomplice or even as a primary violator, since it would have availed itself of an unlicensed telecommunication service and provided it to its employees and representatives.
Moreover, in the absence of a precedent and/or a ruling by the Court of Cassation on such an issue, one cannot guarantee that a court of law will adopt the current market and regulatory practice, whether for the ISP, its corporate subscriber or both, at the expense of a Public Prosecutor’s allegations, backed by the broad context of the Law.
Conclusion
The following applies to all legal and compliance aspects in any place of business:
- As a business owner or the due representative thereof, just because such technology may be widely used by everyone and even advertised and sold everywhere, does not mean that it is fully legal or free of risks.
- As a legal adviser, whether in an in-house or private practice capacity, always rethink the obvious and whatever is widely accepted, to secure solid protection and risk control for the persons and entities you represent.
Video and web conferencing solutions are becoming more essential to all types of business by the day. Commercial ventures, universities, training facilities and even social events are becoming fully reliant on such solutions and they have become vital even for the proper development of rural and remote areas in Egypt and elsewhere. Until a new telecommunication law is enacted and duly addresses this concerning issue, it will continue to be more a matter of highly acceptable practice than a fully legal practice.
Amr el Sabahi, Partner, TMS Legal
The Law Today Magazine 2017
