EU geo-blocking: Ansip's crusade liable to disappear through 'unjustifiable' loophole

Robo-commissioner scrambles to save face

At the eleventh hour, Team Ansip seems to have twigged the implications of what they’ve embarked upon, and introduced what they hope is a facesaver. While an early draft leaked to Politico vowed to end “geo-blocking” with the certainty of Jack cutting down the Beanstalk, a get-out clause has been introduced. Only “unjustified” territorial blocking will be examined for reform.

The proposals published today explain:

There are two common types of market practices and territorial restrictions which differentiate between consumers within the Internal Market: geo-blocking, i.e. simple refusal to sell or automatic re-routing and geo-filtering, i.e. unjustified diversifying of sale conditions.

But what does “unjustified” actually mean?

Ansip’s DSM proposal doesn’t elaborate, but this alone gives him wigggle room. It can narrow the scope of the restriction to the territorial blocking for services like Ansip’s oft-quoted football example, in contracts. If carefully worded, this might ensure the survival of niche producers, and ensure cultural diversity. It doesn’t mean every producer will be forced at (metaphorical) gunpoint to make everything available everywhere at once, to their ruination.

As veteran media expert Raymond Snoddy explains:

“The reality is that the end of unjustified geo-blocking could still mean the auctioning of trans-European rights, effectively pricing national European media groups out of the game. It would be a huge boost for the likes of Netflix or even international cable and telecom companies.”

(Perhaps that was the intention all along, cynics might point out. Under Neelie Kroes, Europe's digital policy was aligned to benefit Californian internet giants, while Google funds much of the academic and institutional base on which Europe's "evidence-based" policy is formulated.)

“Another possible consequence could mean that less rather than more content could be available to cross frontiers. Rather than submit to an uncertain international auction, rights owners might just sit on their online rights until the lucrative traditional broadcast rights - sold in the traditional country-by-country way - have been exhausted before going to online.” Snoddy continues. “For Ansip the Estonian the ironic consequences of his efforts could easily be the marginalisation of minority cultures and minority languages.”

Another facesaver we might see is the creation of a premium Video on Demand service in Europe, whereby everything is accessible but at a price familiar to Germans.

But even these facesavers have problems. Incredibly, the DSM doesn’t have a carve out for national PSBs, or public service broadcasters, like the BBC. To comply with even the “watered down” geoblocking proposal, the BBC would need to introduce an EU-wide authentication scheme to implement portability. This means that you’d need to login whenever iPlayer detected you were accessing the service from a non-UK network, which would then run your details against the TV Licensing database to check you’d pay the telly tax back at home. This would be very expensive, and even more so by the time BBC digital gurus had done their er, digital magic.

There’s another reason Ansip’s cack-handed proposals are not popular down at W1A – anything that makes the BBC look like a subscription service is considered dangerous.

We’re told that Ansip believed the war on geoblocking was an easy populist crusade when he first started raising the issue. It would show in touch he was with consumers, and Europe would thank him for it. But Europe takes cultural diversity pretty seriously, believing (rightly or wrongly) that Europe has it in abundance, while the USA does not.

Geoblocking has revealed how out of touch Commissioners are, and the perils of relying on policy groupthink in the parallel universe of the Brussels bubble. ®