Digital Single Market Directive

For a number of years, the EU Commission has been active in trying to harmonise rules about cross-border access and use of digital services across Europe.

In 2014 this process was labelled the “Digital Single Market” (DSM) strategy and its stated aim is to ensure that the free transfer of data and digital content is given the same importance as the unrestricted movement of people, trade and capital, and so enable consumers and companies to buy and sell products and services online more easily.

There are many separate aspects and new legislation to the DSM and it is an ongoing long-term process, for example the e-commerce directive which has been in force and continually updated since 2000 giving consumers access to more information, more protection and rights to cancel or amend online orders, the e-privacy regulations preventing unsolicited electronic communications, and the abolition of mobile phone roaming charges in 2017 were key initial DSM successes. However three key new rules are currently being negotiated or are recently in force and they are going to affect consumers and businesses who operate in the digital space, whatever our future relationship with the EU looks like. The three are:

• the portability regulations
• the geo-blocking regulations
• the copyright directive.

Damian Humphrey, a partner in our corporate and commercial team who specialises in franchise law, and David Sloman, a solicitor in the corporate and commercial team who specialises in commercial matters such as IT and information law, have published a series of brief explainers about the new legal landscape and how they may affect businesses and consumers. You can access the explainers through the links above or in the introductions to each topic below.

Portability

Regulation (EU) 2017/1128 (the Portability Regulation) ensures that European Union citizens are able to access paid-for online content subscription services (such as music streaming, e-books, TV and films and games platforms) when they are temporarily away from home in another EU country. It has retrospective effect and applies to all contracts in place before that date.

The regulations concern portability of the services, not access to them. The difference between portability and access is that portability relates to the temporary access when abroad to services that were subscribed for in the subscriber’s home country, whereas access is where a consumer can permanently access content that is provided in a different country.

Geo-blocking

Under recently enacted legislation, Regulation (EU) 2018/302 (“the Regulation”), the EU has sought to tackle certain practices carried on by businesses, which have the effect of discriminating against its customers based on their nationality or place of residence or business.

As from 3 December 2018, all businesses trading within the EU have to comply with the Regulations, which are intended to ensure that all customers within the EU are broadly speaking able to purchase goods and services on the same terms.

Copyright directive

The Copyright in the Digital Single Market Directive (digital copyright directive) is a proposed directive that, according to the EU Commission, promotes “a fair, efficient and competitive European copyright-based economy.” The high-level aim of the directive is to adjust copyright rules so that “tech giants…share revenue with artists and journalists” and give them an incentive to sign fair licensing agreements with rightsholders.

However, two particular aspects of the directive have proved hugely controversial and been subject to extensive lobbying by industry and EU member states where the possible winners and losers of the changes are based. These are Articles 11 and 13. Both are discussed.