European Parliament’s Move to End Unjustified Geo-Blocking Leaves Questions Unanswered

Geo-blocking consists of blocking a person’s online access to goods, services or audiovisual content on the basis of territorial or geographical boundaries. The extent to which such actions are permissible in the EU remains an unresolved question. What exactly constitutes unjustified geo-blocking in Europe has been a mystery and topic for debate following the announcement of the Digital Single Market initiatives by the European Commission in May of 2015. However, a resolution passed last month by the European Parliament asserts that “geo-blocking consumers’ online access to goods and services on the basis of their IP address, postal address or the country of issue of credit cards is unjustified and must stop.” The resolution represents an important first step in the prevention of unjustified geo-blocking in the EU. However, it also leaves open some important questions that need to be answered.

Exposure to geo-blocking most often arises when a person attempts to view a video from another geographic region only to be greeted with a message stating that the desired content is unavailable due to copyright restrictions. However, while the most widespread example, the issue runs far deeper than simple access to online copyright material. European consumers are often unwillingly redirected from foreign retail websites to domestic ones when purchasing goods, online retailers from different member states can charge greater fees and costs to consumers across national boundaries, and those shoppers are regularly denied shipment cross-border. As a result, geo-blocking has caused a fragmentation in Europe’s digital economy which has made innovation and competitiveness suffer.

In a press conference last year, Vice Commissioner Andrus Ansip stated that “[t]here are two logics. The logic of geo-blocking and the logic of internal market. We have to make our choice. Those two, they cannot coexist.” According to Ansip, ending unjustified geo-blocking represents a move toward greater online access to goods and services, increased innovation, and greater competition in the EU. However, before these goals can be attained, uncertainties must be resolved. Resolution will require the consultation of member states, different governing agencies of the EU, and the general public, each with the opportunity to complicate the issue further.

One uncertainty is whether the Parliament’s definition of ‘unjustified’ is exhaustive or can be expanded to include other areas not specifically mentioned. For example, the Parliament limited its definition to consumers’ “access to online goods and services” which begs the question of whether audiovisual content and copyrighted material should be considered goods in a traditional sense. Further, the limitation to only online goods and services raises questions about whether geo-blocking in other, unforeseen, mediums might be permissible.

Another area left unresolved by Parliament’s resolution is whether ‘justified’ geo-blocking may exist. Copyright laws in the European Union are harmonized by the Copyright Directive. Article 4(1) of the Directive grants authors and copyright holders the “exclusive right to authorize or prohibit any form of distribution to the public by sale or otherwise.” From this, copyright holders derive complete latitude to determine the means by which their material is disseminated in Europe. Generally, copyright holders have chosen to award copyrights on a country-by-country basis. However, should such action be regarded as unjustified geo-blocking, the extent to which copyright holders may exert control is an important question, not just for copyright holders, but for consumers as well. So, whether forcing copyright holders to permit access to their material across national boundaries is impermissible, per the Directive’s mandate, or whether such regulations could be regarded as justified is unclear and unaddressed by the Parliament’s resolution.

In short, these are only two examples of questions facing upcoming geo-blocking regulations in Europe and whether sufficient answers will be provided, and who will provide them, has yet to emerge. It remains to be seen how the issue of unjustified geo-blocking will evolve as it moves through the EU’s various legislative branches and later to the member states. But, regardless of the outcome, ending unjustified geo-blocking must remain a high priority if Europe is to remain competitive with other growing and developed markets (lest it miss out on new forms of innovation as it has in the past). Moreover, as long as the internet and e-commerce continue to be a primary means for consumers’ to access goods, services and audiovisual content, a focus on geo-blocking will remain necessary within the EU.

Jeremiah Johnston is a 3L and an Articles Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

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