Geoblocking is the practice of preventing consumers in one country from accessing products in another. Last week the European Council unveiled a draft plan to ban unjustified geoblocking within the European single market.
This draft plan pertains to geoblocking in the physical and digital delivery of products and services. It specifically does not apply to geoblocking as a function of copyright and neighbouring rights issues.
(See also: grown adults tweeting petulant first-world rants about not being able to binge-watch downloaded episodes of a TV show while on holiday in the sun. That non-issue is one we’ll continue to hear more privileged whingeing about in future. But I digress.)
What the draft says
Under the Council’s draft proposal (pdf), e-commerce sellers will not be able to discriminate to the country of sale when they
- Sell goods to customers in another country, either for delivery or collections;
- Sell digital products and services such as cloud and web hosting, data storage and warehousing, and security;
- Provide services to customers in another country such as hotel accommodation, gig tickets, car rental, etc.
- Sell goods or services to customers in another country, or to customers of another nationality, by applying different terms of payment.
Traders will still retain common-sense rights under the draft proposal. For example, price discrimination is not prohibited. Traders can still offer different prices to certain groups of customers in another country. Nor will traders be forced to agree to unreasonable requests, such as selling to a buyer in one country but having to deliver the goods to a second country.
UX and location data
The draft proposal contains some specific provisions concerning the intersection of geoblocking, UX, and location data.
Traders will not be allowed to block or limit customers’ access to a web site or app for reasons of residence or nationality, and must provide a clear explanation if a customer is redirected based on location. As part of that, the draft states:
Redirecting a customer from one version of the online interface to another version without his or her explicit consent should be prohibited. Traders should not be under the obligation to require the customer’s explicit consent each time the same customer visits the same online interface. Once the customer’s explicit consent has been given it should be deemed valid for all subsequent visits of the same customer to the same online interface.
As for knowing where a customer comes from in order to put up that interface, the draft says that
traders should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address or coordinates obtained through a global navigation satellite system.
Justified geoblocking is justified
The draft proposal pertains to unjustified geoblocking. We have already had a concession this year which acknowledged that justified geoblocking can exist within the European single market, specifically in the case of VATMOSS. This MOSS-specific concession is repeated in recital 22 of the draft proposal.
The MOSS concession stemmed from Article 20 of Directive 2006/123/EC, the Directive on services in the internal market, which states that
Member States shall ensure that the general conditions of access to a service, which are made available to the public at large by the provider, do not contain discriminatory provisions relating to the nationality or place of residence of the recipient, but without precluding the possibility of providing for differences in the conditions of access where those differences are directly justified by objective criteria.
If you invoke this right, you need to ensure that your objective criteria are indeed justifiable. In other words, if your reasons for geoblocking are anything less than legally watertight, you will be caught out.