EU digi-chief clashes with robo-veep over geo-blocking Gaffe-prone Commissioner Günther H-dot Oettinger is at it again. In statements to the German press (he rarely talks to anyone else), Oetti directly mocked his boss Andrus Ansip’s desire to end geo-blocking. Former Estonian prime minister Ansip – known as The Robot back home – has made eradication of geo-blocking his prime goal …
There's already a prohibition in EU competition law on banning "passive" sales to another country in the EU. This essentially means that if I am in France and I want to purchase something from a German website, the supplier to that website can't enter into an agreement with the website to stop me from doing so (this is the ruling in Pierre Fabre). It's justified on the basis that this is an agreement with the object of distorting competition, but I've alway thought that the real reason is because it's contrary to the sacred cow that is the single market. You can however ban "active" sales (this would be sales made thanks to advertising in the other country).
Geoblocking on its face appears to be a passive sales ban. However, the European Court's ruling in CISAC suggested (and this is a gross oversimplification of a ridiculously complicated judgment) that parallel conduct in putting creating territorial restrictions by copyright licensing agencies weren't necessarily a breach of competition law.
The two cases really don't sit very well together. Especially when you add a third one into the mix: the Mrs Murphy case on Greek coverage of English Premiership football being played in a UK pub (a criminal offence, if you can believe it). Here, the court suggested that had Murphy played the Greek coverage in the privacy of her own home, she'd have been off the hook.
On balance, there's the suggestion that geoblocking is potentially a breach of competition law, if it's done by agreement with the licensor of the original content. This is what the competition branch of the Commission's Pay TV investigation is all about- not territorial restrictions per se, but the effective ban on passive sales (more details on this are here: http://europa.eu/rapid/press-release_SPEECH-14-13_en.htm). Indeed, the Commission's conclusion in this investigation is very likely to have a bearing on interpreting what the legal situation is on geoblocking.
Oettinger and Ansip's very public cockfight before the conclusions of this case doesn't seem either relevant or helpful. In any event, deciding the issue using well established and well regarded principles that are applied to the entire economy, rather than trying to legislate a new sector-specific doctrine based on which lobbied Commissioner gets the upper hand in the end appears to be infinitely preferable.
Why indeed.
Note that one of the few European companies actually turning out content that's natively in English (i.e. going head-to-head with the American suppliers) is the BBC. Which does quite nicely out of US sales.
You have to suspect that the usual French paranoia over "Anglo-Saxon cultural imperialism" is at the root of this somewhere.
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