Dechert OnPoint: Internet Services
Dechert Georgia, through the contribution of partners Archil Giorgadze and Nicola Mariani, joined by senior associates Ruslan Akhalaia and Irakli Sokolovski, as well as Ana Kostava and Ana Kochiashvili, is partnering with Georgia Today on a regular section of the paper which will provide updated information regarding significant legal changes and developments in Georgia. In particular, we will highlight significant issues which may impact businesses operating in Georgia.
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I. Internet Services: Customers’ Rights under Georgian Law
The Georgian National Communications Commission (“GNCC”) is the primary state organ entrusted with the regulation of the telecommunications sector in Georgia. The GNCC issues binding legal regulations in the field of electronic communications. The GNCC regulates the conduct of electronic communications sector operators (the “Operators”) who are persons (both natural and legal) authorized to operate in the Georgian market for electronic communications services. Consumer-related legislation is a material component of telecommunications regulation in Georgia. The GNCC regulates the delivery of services and protection of consumer rights in the field of electronic communications. Accordingly, GNCC resolution #3, dated 17 March 2006 (as amended, the “Regulations”) sets out and protects the rights of subscribers of telecommunication service providers. The Regulations cover all fields of electronic communications, including internet service provision.
This edition of OnPoint provides an overview of the Regulations related to the provision of internet services to end users/subscribers.
II. Obligations of the Operators
Operators have various obligations with respect to internet service provision. For example, Operators are only allowed to provide internet services to customers on the basis of an agreement executed in written form. Such agreement is concluded pursuant to the application of an end user to the Operator. The end user shall provide for the necessary access to its premises to the Operator as required for the establishment of the relevant local network. The Operator, as the service provider, shall have the means to detect and disconnect relevant end users in cases of fraud, embezzlement, provocation, etc.
Private or work e-mails are confidential and can only be reviewed pursuant to a court order or in cases of necessity as prescribed by law. The e-mail hosting service provider shall protect end users from unauthorized access to their e-mails by third parties. The e-mail service provider as well as internet service providers shall take all reasonable means within their authority to protect end user accounts from unsolicited communications.
Where internet games are operated by or used by the Operators, the Operators are obliged to regulate access, including restricting access to minors, to games that include monetary gains or losses. The Operators are required to post information about the gaming rules on the same webpage where the game itself is accessed.
A different set of obligations applies to web page and internet domain owners. Web page owners are responsible for the security of links available on their web pages and shall publish alerts about potential viruses as well as a guide on how to avoid viruses. The internet domain shall not be confusing and shall not serve the purpose of shadowing other web pages. The Operators are additionally obliged under the Regulations to register the details of end users when providing chat services.
Other obligations exist as well. For example, the Operator shall at any time, at the request of an end user, make available without any charge to the end user information on the type of service provided, tariffs, service plans and the speed of the provided internet connection. The end users shall also freely receive information about their consumption, traffic and charges for a specific period. The obligation to provide information additionally covers: the rules of payment, the schedule; notice about the suspension/termination of services; information about the service interruption times and duration, as well as the amount of relevant compensation due for undelivered services; the quality and/or terms and conditions of provision of internet services; the measures to be taken by the Operator in case of breach of internet usage rules by the end user; etc.
The Operators are obliged to have a 24/7 hotline. The information provided to the consumer must be accurate, reliable, comprehensive and understandable, and must not be of a misleading or fraudulent nature. The Operators are only allowed to change the terms and conditions in case they duly inform the customer of any changes no later than 10 working days in advance.
The Operator shall provide the customer a notice to provide information, services, terms and conditions of such modification which increases customer commitment volume or changes service conditions in a way likely to significantly influence the customer’s decision on the continuation of services.
The Operator shall post information for the users of the service offered, including service packages and tariffs, as well as information services, suspension and termination conditions and amendments to the service package.
The Regulations set out strict timeframes for remedying service interruptions and downtime, the latter being defined as the time when the supplied internet was lower in speed than promised by the relevant internet tariff plan. Shall the Operator be unable to remedy the cause of interruption and fully reinstate the services, service credits apply and the time of interruption shall be deducted from the next month’s bill.
The Regulations grant certain freedoms to the Operators with regards to reasons for suspending services and calling for immediate renewal of services once the reason behind the suspension ceases. However, the Regulations only allow termination of internet services in case of a lapse of 45 days after the services have been suspended for one of the reasons established in the terms and conditions of the relevant agreement between the end user and the Operator.
The Operators are additionally responsible for proper marking of content which is not intended for adolescents and can cause physical and psychological harm. The Operators shall utilize all reasonable means to avoid the access of adolescents to non-adolescent content on the internet, including limiting the accessibility of certain web pages to relevant age groups, etc.
III. Procedure of End Users’ Direct Complaints to the GNCC
For the effective resolution of consumer complaints, the Regulations provide that Operators must have internal dispute settlement bodies responsible for handling subscribers’ claims and keeping records of such claims. Moreover, the Operators must also adopt respective claims handling procedures and publish them on the relevant web page, along with providing information about such procedures in the agreement with end users. This internal dispute settlement body must make decisions on claims within 15 days from receipt of the claim. The subscribers’ have a right to appeal such decisions at the GNCC or Georgian courts.
The GNCC addresses consumer complaints against Operators in accordance with the administrative procedure prescribed by the General Administrative Code of Georgia. The Consumer Protection Inspector, a special organ within the GNCC, represents, guides and aids consumers regarding their complaints. In general, an oral hearing is held with both the consumer and the Operator duly represented and given the opportunity to present their case. The Consumer Protection Inspector is additionally allowed to present the Complaint before the GNCC on its own motion, based on the information provided by subscribers.
IV. Conclusions
On a final note, Operators, and especially the Operators with significant market power, tend to have all the terms of their standard end user agreements first approved by the GNCC before concluding them with subscribers. However, such approval from the GNCC does not exclude the possibility of valid claims against such agreements under the Regulations, and against illicit conduct by Operators.
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Note: this article does not constitute legal advice. You are responsible for consulting with your own professional legal advisors concerning specific circumstances for your business.