Geoblocking Regulation: Last Minute Recap Of What's In It

Today is the day: on Monday, December 3, the Geoblocking Regulation (the Regulation) starts applying to online businesses operating across several EU Member States. For those who feel like they need a refresher, below we provide an overview of what is in the Regulation – as well as what is not. The Regulation in a Nutshell The Regulation lays down rules relating to access to online interfaces, access to goods and services and non-discrimination for reasons related to payment.

• Access to online interfaces: the Regulation bans the blocking of access to website or the re-routing without the prior consent of the customer. For instance, a customer located in Ireland should be free to access the French website of a trader and should not be automatically redirected to the Irish version of the trader’s website.
• Access to goods and services: the Regulation envisages two main scenarios.
  • Sale of products: the Regulation does not compel traders to deliver across all EU Member States. However, where a trader does not deliver its products in the customer’s Member State, customers are nevertheless entitled to delivery in the Member State of the trader, under the same conditions as local customers. Under this rule, a German consumer who wishes to buy a bike and finds the best deal on a Polish website will be entitled to delivery of the bike in Poland.
  • Sale of services, either electronically supplied (e.g. cloud services) or provided in a specific physical location (e.g. concert tickets): customers established in a different Member State than the trader must be able to purchase the service under the same conditions as local customers. Importantly, these rules do not apply to the provisions of non-audiovisual copyright protected content services (e.g. e-books or video games), which are otherwise covered by the Regulation.
• Non-discrimination for reasons related to payment: traders must accept the same means of payments for all customers, regardless of their nationality, place of residence, location of the payment account, place of establishment of the payment service provider or the place of issue of the payment instrument within the EU, provided that a number of conditions are met (e.g. the payer fulfils authentication requirements).

Enforcement of the Regulation is ensured at Member State level, by appointed authorities. To the best of our knowledge, not all EU Member States have yet appointed such authorities – which might cause delays in enforcement. Audiovisual Services Not Impacted – For Now Crucially, audiovisual services are excluded from the scope of the Regulation – at least for now. The Regulation includes a two-year review clause, which explicitly aims at reconsidering the inclusion of audiovisual services. In addition, a number of other EU initiatives are targeting audiovisual services with a view to facilitate the cross-border circulation of audiovisual works:

• Under the Portability Regulation, already in force, online content service providers must allow consumers to access their portable online content services when they travel in the EU in the same way they access them at home. The cornerstone of this Regulation is a legal fiction: for copyright purposes, the subscriber who is temporarily present in a Member State will be deemed located in its Member State of residence.
• The EU institutions are currently in trilogue discussions concerning the review of the SatCab Directive. Based on the country of origin principle (i.e. clearance of rights in the Member State of emission amounts to clearance for the whole EU), this 1993 Directive currently facilitates the cross-border provision of satellite broadcasting services. The purpose of the review is to extend the country of origin to cover online broadcasting. But the precise scope of the review remains unclear:  while the EC proposal initially meant to include content made available through catch-up TV and live streaming, the EU Parliament and the Council then suggested to water down the proposal and to exclude movies and TV shows. It is understood that the ongoing trilogues are precisely focusing on the scoping issue.
• Finally, DG Comp’s Pay-TV investigation continues. In a nutshell, the EC is taking issue with a geoblocking clause included in Sky’s contracts with six studios (Disney, NBC Universal, Paramount Pictures, Sony, Twentieth Century Fox and Warner Bros). According to the EC, such clauses may amount to an impermissible ban on passive sales (to be noted: in its e-commerce sector inquiry, the EC emphasized that only those geoblocking restrictions that are contractually agreed may be caught by EU competition law; those that are unilaterally imposed cannot). To date, two studios have offered commitments to settle the probe, namely Paramount and Disney. The investigation continues with regards to the non-settling parties.

More to Come Soon? Based on the above, there is little doubt that geoblocking in the audiovisual sector will likely be on the EU legislator radar after the parliamentary elections next year. But these initiatives will probably face an uphill battle, as they will have to strike a balance between the free circulation of audiovisual works in the EU, on the one hand, and the territorial limitations inherent to the current copyright framework, on the other hand – a task that has proved impossible so far. Against this background, the upcoming review of the Geoblocking Regulation will be worth following very closely.