Body of European Regulators for Electronic Communications (BEREC) publishes guidance on encouraging the use and take-up of tracing apps

BEREC notes that fears of the effect that tracing apps might have on data usage can discourage people to download and use them. Accordingly, it has identified various measures that might be effective in encouraging people to use tracing apps and that should ensure that the apps can communicate even when a data cap has been reached.  Depending on the amount of data the app transmits, BEREC advises utilising one or more of the following measures:

  • zero-rating the data of tracing apps;
  • temporarily increasing the size of data packages;
  • allowing data transmission at reduced bandwidth even after the cap has been reached; and/or
  • in exceptional cases, allowing the tracing app to transmit and receive data even when the connection has been blocked.

BEREC says that if the amount of data transmitted by the app is small, simply ensuring continued connection at reduced bandwidth once the cap has been reached can be sufficient. With high data consumption, zero-rating the data or temporarily increasing data packages may be a more efficient measure to take.

BEREC also reminds readers that any measure that treats apps differently and applies traffic management measures beyond those that are reasonable would need a valid legal reason in order to comply with the Open Internet Access Regulation (2015/2120/EU). This would for example apply to measures that offer exclusive connectivity for tracing apps when the data cap has been reached and the connection has been blocked.

In general, the Open Internet Access Regulation and the BEREC Open internet Guidelines apply without exception to the treatment of data related to COVID-19 apps when these data are sent over an internet access service. The main rule is that all traffic must be treated without discrimination when a data cap has been reached, so either all traffic is blocked or the speed of all traffic is reduced.

The Regulation contains exceptions to the general rule, allowing measures that go beyond reasonable traffic management in order to comply with EU law, national legislation, court orders or orders from public authorities. These exceptions are subject to strict interpretation and to proportionality requirements.

As for providing connectivity for tracing apps when a data cap has been reached and the connection has been blocked, BEREC says that national laws implementing tracing apps might amount to a legal reason for which an ISP can take discriminatory traffic management action in accordance with Article 3(3). This should apply only for as long as necessary to prevent or contain the spread of COVID-19 and must also comply with the requirements of the EU Charter of Fundamental Rights. To read BEREC’s guidance in full, click here.