DSM Watch: EU Commission publishes initial results of geo-blocking and online platforms public consultations

Last week the Commission released a summary of the responses received in two of the three public consultations launched in September 2015, in what was the opening salvo of concrete policy initiatives under the Commission’s Digital Single Market strategy.

The geo-blocking consultation sought evidence on the effect of technical barriers and other unjustified restrictions imposed by websites and online service providers on cross border access to goods and services made available over the internet. It ended on 28 December 2015. The focus of the platforms consultation was to gather evidence on the regulatory environment for online platforms, the liability of intermediaries and cloud and data driven services. It closed on 6 January 2016.

Geo-blocking: Highlights

• More than 90% of consumer respondents agreed or strongly agreed that consumers and businesses should be able to purchase and access services everywhere in the EU.

• More than 80% of consumer respondents indicate that they have experienced geo-blocking and the vast majority of them supports a legislative solution to tackle unjustified geo-blocking.

• The Commission reports that respondent companies largely shared the view that geoblocking/discrimination is an issue and that consumer choice and competition are important. The Commission’s view is that this indicates that many companies agree that consumers should be able to access goods and services across borders.

• However, respondent companies stressed respect for contractual freedom. Many of them were strongly opposed to requiring traders to sell and deliver goods outside of the areas where they would normally do business.

Online platforms: highlights 

• A large majority of citizens and of businesses recognised the benefits of online platforms.

• Most respondents stated that platforms should be more transparent, especially about search results and their use of data collected from users.Conversely, most online platforms believe they offer sufficient information to their users.

• The majority of consumers and platforms considered that a combination of regulatory solutions, self-regulatory and market dynamics were appropriate for platforms in future while business respondents were more equally divided between regulation alone or in combination.

• Views are divided whether the liability regime under the E-commerce Directive is still fit for purpose.

• A majority of respondents (both citizens and businesses) believed that existing legal arrangements and practices are not fit for purpose to address the liability issues posed by the Internet of Things, data driven services and connected tangible goods.

The Commission’s high-level report on the consultation does not address the difficult question of how to define a platform. Platforms are multifaceted, and exist in both the offline and online worlds. The Commission’s consultation document referred to a platform as multi-sided market, but national lawmakers (such as in France) are crafting their own definitions of what is a “platform”. The Commission also does not discuss why transparency cannot be achieved through existing consumer protection legislation, as opposed to adopting new legislation directed at platforms.

Next Steps

The Commission plans to publish all the consultation responses it received by 6 February, with full reports to follow in due course. A legislative proposal to end unjustified geo-blocking is due by mid-2016. In contrast, the Commission’s intentions in relation to online platforms are less clear cut at this stage, with a substantive assessment of the consultation and any further actions not to be published until summer 2016.

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