A commercial basis, see above, exists if for example a company sells or markets a product to directly or indirectly obtain a profit. Whether the activity in question is profitable or not is not relevant.
For example, if a hotel establishes an internet hotspot in its lobby or makes internet or voice telephony available in their rooms, free of charge, the hotel will be regarded as a provider, because the activities take place to make the hotel more desirable, and thereby to obtain a profit.
A commercial basis furthermore exists if an activity usually takes place on a commercial basis, regardless if, in the actual case, the company, association or authority aims to obtain a profit.
For example, if a municipality rents out rooms for businesses with internet access included, the municipality will be regarded as a provider, because letting usually takes place on a commercial basis, and because the provision of internet access usually takes place to make the lease more attractive.
Registration of providers of electronic communications networks and services
No authorisation is required of providers of electronic communications networks and services but all providers must register with the Central Data Section of the Danish National Police.
Registration can be done on the website for Danish police
The definition of a provider and the Executive Order on the retention and storage of traffic data (…)
A number of businesses, associations and authorities regularly contact The Danish Agency for Data Supply and Infrastructure inquiring whether or not the definition of a provider in the telecommunications act applies to them. The inquiries are often motivated by a desire to know whether or not the business etc. in question are obliged to retain data in accordance with the Executive Order on data retention. The Executive order on data retention has been in effect since September 2007 (latest amended in 2022) and obliges providers to end users to retain and store traffic data generated or processed in the provider’s network.
The Executive Order on data retention is managed by the Ministry of Justice, but the duty to retain and store information lies with providers of electronic communications networks and services. The definition of a provider is to be found in the Act on Electronic Communications Networks and Services, hence the questions concerning the scope of the definition lie under the purview of the Danish Agency for Data Supply and Infrastructure. Questions concerning the scope of the duty to retain data i.e. what data to retain lie under the purview of the Ministry of Justice.
Questions and guidance concerning the definition of a provider
Is it of consequence whether the service in question is fixed or mobile based or an internet access service? And what about internet hotspots?
No. The type of technology used does not matter – the definition of a provider is technological neutral and does not distinguish between different technologies.
Who is the provider in a specific case? My business (for example a caravan park) or the company that establishes the actual connection and provides internet access to my business?
The business that has the end-user relationship is the provider in the meaning of the Act on Electronic Communications Networks and Services. If customers pay the caravan park directly and the caravan park subsequently pays an internet access provider, the caravan park will, in regard to the customer/end-user, be regarded as a provider.
I provide free wifi at my café, gas station etc. – am I a provider?
Yes. When the internet connection is made available in connection with a commercial enterprise, the activity provision of internet access will be regarded as being made on a commercial basis (cf. above). The number of customers the café, gas station etc. services and whether or not the customers pay directly for internet access is not relevant in this context.