UK Plc responds to EC Geo-blocking consultation

Who: UK government

Where: UK

When: 15 January 2016

Law stated as at: 8 February 2016

What happened:

The UK government has set out its response to the European Commission’s consultation on preventing unjustified geo-blocking and other forms of geographical discrimination which prevent consumers from accessing information online throughout the EU.

This is part of the European Commission’s consultation on its Digital Single Market Strategy and its emphasis on preventing unjustified geo-blocking.  The European Commission’s aim is that these consultations will help it to prepare its legislative proposal to end unjustified geo-blocking.

In essence the UK government confirmed that consumers should not be prevented from viewing and accessing prices offered to consumers in other EU Member States.  However, this is balanced with certain supply-side factors (e.g. logistics and delivery costs) alongside demand-based factors (e.g. concessions based on student status) that can justify a business charging a consumer a different price on occasion.

In summary, the UK government’s response is that:

• a ban on users “being blocked upfront from accessing a specific webpage or content on a webpage” should be introduced; and
• action should be taken against unjustified price discrimination.

As a result, the UK government would support:

• a ban on methods which enable discriminatory geo-blocking.       However, it views passive rerouting (i.e. automatic rerouting to the national site but with the option of allowing the user to return to the original site) to be acceptable;
• a ban on the discriminatory blocking of access to website across borders;
• a requirement for traders to obtain consent from consumers before automatically re-routing them to another website;
• the creation of a list of reasons which cannot be used to justify treating domestic and foreign users differently; and
• a closed list of objective and verifiable reasons that can be used for treating domestic and foreign consumers differently.

The UK government will not support:

• compulsory transparency measures e.g. requiring companies to inform consumers in advance of any objective and verifiable reasons for treating domestic and foreign consumers differently based on their nationality or residency;
• a requirement for traders to accept transactions from consumers across the EU where there would be disproportionate administrative costs and burdens;
• a requirement for traders to accept transactions from consumers across the EU and provide cross-border delivery if the consumer themselves is willing to organise delivery and cover additional delivery costs;
• the implementation of rules which are only applicable to online transactions or, alternatively, only applicable to physical purchases;
• a requirement for traders to accept foreign credit cards or other types of foreign payment.

Why this matters:

This consultation has given the government the opportunity to state that it strongly agrees with the principle that consumers and businesses should be able to purchase and access services anywhere in the EU.  However, it does not go as far as requiring businesses to ship or deliver goods to any location within the EU.  In this sense the government has not interfered with the general principle that businesses should be free to contract.  The government’s emphasis instead is focused on ensuring that consumers are not discriminated against due to their nationality or place of residence.

Although the proposed legislation in this area is in its early stages, this response indicates the possible tone and emphasis of future legislation against geo-blocking.  As such, marketers can start to put measures in place to prevent claims that they are discriminating on grounds of  nationality or place of residence.

The European Commission has already published its Roadmap in response to this Consultation and lists four main options:

1. no change to EU policy;
2. improving the implementation and enforcement of existing legislation;
3. alternative approaches such as banning denial of access and geo-blocking based on nationality or place of residence; or
4. awareness-raising and transparency.

It will be interesting to see which option the European Commission decides to take in this area.