Geoblocking and Brexit

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[If the UK government does not seek access to the Digital Single Market, or is unsuccessful], how does the government plan to deliver the benefit for UK digital subscribers of being able to access the same online content and services wherever they travel in Europe?

Relevant policy:

Progress and developments:

Geoblocking was the first DSM topic that fell onto the European Scrutiny Committee’s desk after the Brexit referendum, and their proceedings reflect that dawning realisation.

In November 2016 the European Scrutiny Committee offered some exhaustive questions on unauthorised geoblocking.

In January 2017 the Committee published a report on geoblocking post-Brexit which asked these questions:

The Committee is concerned by the Minister’s [the then-Minister for Energy and Intellectual Property at the Department for Business, Energy and Industrial Strategy] initial assessment that UK businesses trading in the EU would continue to be constrained by this Regulation post-Brexit while EEA businesses would be remain free to use unjustified geo-blocking techniques in relation to UK consumers. We therefore request that the Minister provide further information on these points. In particular:

  • When the UK leaves the EU, to what extent will UK businesses continue to be constrained by each of the main provisions in the Regulation in the same way as when the UK was a Member State?2
  • If the Government chooses to retain the Regulation in domestic legislation following Brexit, will this provide UK consumers seeking to purchase goods or services from EEA businesses with the same protections against unjustified geo-blocking as those that the Regulation will provide customers in EU Member States? Would a bilateral agreement with the EU be necessary to ensure that these protections against unjustified geo-blocking obtained, or not?
  • If the Government’s answers to the previous questions are that (i) UK businesses will have to comply with the Regulation when selling to EEA consumers, whereas (ii) EEA businesses will be free to engage in unjustified geo-blocking of UK consumers even if the Government retains the Regulation in domestic legislation, we ask the Minister to explain the basis of this discrepancy. How can the EU require UK businesses to comply with the geo-blocking Regulation but the UK not be able through domestic legislation to require EU businesses to do the same?

In March 2017, having received written answers from Government, the European Scrutiny Committee wrote:

In relation to the Geoblocking Regulation, the Minister [the Parliamentary Under-Secretary of State] states that:

“The General Approach agreed by Member States met government objectives to (i) achieve the main policy aims of the proposal; (ii) preserve consumers’ rights in relation to choice of law and jurisdiction in cross-border contracts, while avoiding creating legal uncertainty for businesses; and (iii) exempt microbusinesses which fall under the national VAT limit. This agreement is particularly good news for UK consumers, who are the most active in the EU in terms of e-commerce, and have been subject to numerous instances of geoblocking in the past.”

In November 2017 the Committee requested that Government provide it with a copy of the compromise text on amendments to the regulation, which resolved disputes over e-books and music streaming.

The Committee also noted the draft legislation’s inclusion of a third country rule, which will mean that the Regulation will apply to non-EU traders operating within the European Union.

The Committee has asked Government to clarify “whether an agreement between the UK and EU is needed for this Regulation to benefit UK consumers…Will the UK, after it leaves the EU, be able to retain the beneficial effects of the geo-blocking regulation through domestic rules alone, or will a bilateral UK-EU agreement be necessary to retain these effects?”

In September 2018 the ESC cleared the geoblocking proposal from scrutiny. In this case, it was effectively closing the book on the issue: as the UK is leaving the DSM, it cannot enjoy the benefits of the regulation, either on the merchant/retail side or on the consumer side. End of.

In October 2018 DExEU released a “no deal” scenario paper on geoblocking, though you should be mindful that these issue are actually about cross-border content portability.