Proposed to enter into force on 1 August 2022.
Which parties are affected by the new provisions?
The target group is primarily providers of public electronic communications networks and publicly available electronic communications services. However, certain provisions of the new law will also apply to operators providing so-called interpersonal number-independent communications services, such as instant messengers and other types of communications services. Providers of these services may therefore be subject to the new rules.
Mullvad is conducting this analysis in order to provide its users with a balanced view and understanding regarding how the new legislation affects Mullvad's service.
Summary and conclusion
It may be considered as far-fetched for a VPN service to be deemed to be a public electronic communications network since this is dependent upon the user being connected to the Internet in order to use the VPN service. Furthermore, in the preparatory works to the current LEK (and also statements from PTS), the legislator has expressed that a VPN service is not subject to a reporting obligation under the LEK. This suggests that a VPN service is also not to be considered as an electronic communications service since, according to the previous positions, the service does not, wholly or mainly, have control, either physical or contractual, over the signal transmission that enables the service to be used. Nor should it be considered that Mullvad's service is the type of service covered by the concept of "machine-to-machine", as such an interpretation would in practice mean that almost all communications that take place today will eventually be covered. Nor is there anything else in the preparatory works to the New LEK (or the Directive) that clearly indicates that the legislator now wishes to change the current scope of the legislation in a way that entails that a service, like the one Mullvad provides, should be covered.
On the whole, it appears to be the reasonable interpretation based on the previous preparatory work and PTS statements that a provider of a VPN service is not subject to a reporting obligation under the New LEK where the provider does not simultaneously provide another service that is subject to a reporting obligation (e.g., an Internet operator).
Pending other statements and/or practice in this area, it should thus be possible to interpret the situation such that the VPN services in question are not covered by the New LEK. Mullvad will continue to focus on the issue and update its analysis in the event new information arises.