Will staying in Europe mean greater access to Netflix?

14 April 2016. Published by Joshua Charalambous, Partner

Given the recent press attention given to David Cameron’s tax affairs it is doubtful that much could chill his concerns at the moment – even watching Netflix.

Nevertheless, with both sides of the EU Referendum debate seemingly throwing negativity at the other, this blog piece suggests we should look at the debate from the perspective of: “if we stay in the EU this is what we get.  If we leave, will we still get it?”

The overwhelming majority of people like to watch TV and films. The explosion of on-demand services such as iPlayer, Netflix and Amazon Prime reflects that people want to watch a lot, when they want and where they want.  However, under existing EU legislation consumers who have purchased online content from their home Member State are unlikely to be able to access that content outside their home Member State due to geographic restrictions. Preventing this access is called 'geo-blocking'.  The good news for those consumers who are concerned by the restriction is that the European Commission is in the process of implementing some feel-good legislation that would remove geo-blocking (see here).

No more would viewers be blocked from logging into iPlayer when attempting to catch-up on EastEnders while on holiday.  No more would the diehard English football fan be unable to log in to SkyGo in late August to see their favourite team play their first game of a new season.  No more would families be able to socialise with teenagers on holiday – teenagers who spend the rest of the year binge watching the Walking Dead/ Game of Thrones rather than spending quality time with the family.  

Together with a number of other changes, the easing of the geo-blocking restrictions was aimed at dragging the digital market into the 21st Century.  For a review of the wider impact of the proposals for a Digital Single Market (DSM) in which the UK participates, see RPC's IP Hub blog post here.  A key aim of the DSM is to harness positive change by improving access to digital goods and services – the Government proposes that the changes would make life easier for the consumer and build trust in the market (see here).

But what then would the repercussions be for digital content junkies if the UK votes to leave the EU on 23 June 2016?  Could the UK still find a way to be a part of the DSM and benefit from the EU legislation removing geo-blocking? Assuming that the UK votes 'leave', the answer depends on the way in which the UK exits the EU and the form of the relationship that may exist going forward.  

Potential post-Brexit relationships

 If the UK were to retain its subscription to EU laws (in a similar way to Norway's EEA arrangement) it might be afforded the ability to pick and choose which laws it subscribes to.  As a result, the UK might still be able to participate in the DSM and consumers of digital content would be able to sleep easy.  In truth the level of monetary contribution to the EU made by Norway, and the number of EU programmes in which it participates as a result, means that a similar model for the UK is unlikely to appeal to those voters who support the 'leave' campaign.  

Switzerland's relationship with the EU is unique – Switzerland enters into a number of bi-lateral accords (in contrast to agreements signed up to by all the Member States).  These accords or agreements make a large chunk of EU law applicable to Switzerland. If it was possible to replicate this style of participation then the hopes of participating in the DSM are greatly improved. In this context the UK would firstly have to decide which sectors or areas of EU law it wanted to subscribe to and secondly reach an agreement with the EU to enter into such treaties.  Given the time and uncertain nature of this task it would leave the UK's participation in the DSM in postponement but not outright impossible.


 Given the complexities and time implications associated with the UK leaving the EU, the public have yet to be presented with a method for consumers to receive the benefits of the DSM.  

Although to vote 'leave' will maintain the status quo for consumers receiving the benefit of the DSM (i.e. they won't miss what they don't yet have), it could be a useful tool for David Cameron to create a positive campaign for 'stay'.  Much of the anti-Brexit campaign is focused on the negative changes Britain would face if it left the EU with narrow issues being discussed at a high level.  Perhaps this is an opportunity for both sides to debate wider more day-to-day issues affecting consumers.

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