The legality of geo-blocking: could Sky’s recent commitments in the “Pay-TV” case impact European sports broadcasting?

Published 01 August 2019 By: Ciaran Fitzgerald-Morgan

Sports Streaming

On 7 March 2019 the European Commission (EC) accepted commitments1 offered by certain Hollywood studios (Studios)2 and Sky UK (Sky) not to block pay-TV access to films for consumers in the European Economic Area (EEA) located outside of the UK and Ireland, bringing to a close an antitrust investigation that had been running since 2014 (Pay-TV).

The EC's investigation in Pay-TV had focused on the impact of clauses (Blocking Clauses) requiring Sky to block access to the Studios' films through its online OTT pay-TV services (by "geo-blocking") and/or through its satellite pay-TV services to consumers outside its licensed territory (by "encryption"). The EC’s concern was that the Blocking Clauses amounted to "absolute territorial exclusivity" in breach of EU antitrust law.

While the Pay TV investigation concerned film licensing rather than sport, the EC’s approach and the binding commitments could have implications for sports property rights owners (SROs) and broadcasters as provisions similar to the Blocking Clauses are often adopted in their sports broadcasting agreements.

The implications of the decision are not however straightforward, and conclusions can only be reached by considering the nature of the broadcast technology adopted in each case, and complex areas of EU copyright, broadcast and antitrust law.

This article will consider:

  1. What geo-blocking is, and why it is of importance to the sports broadcasting industry;

  2. The Pay-TV investigation, and conclusions to be drawn from it in relation to the EC's stance on geo-blocking;

  3. The importance of the symbiotic relationship of EU antitrust law and copyright law in relation to geo-blocking;

  4. EU legislative reform and its impact on geo-blocking; and

  5. The landscape for SROs and OTT broadcasters in relation to geo-blocking going forward.

 

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Ciaran Fitzgerald-Morgan

Lawyer, T.E.A.M. Marketing AG

Ciaran is a football media rights lawyer at T.E.A.M. Marketing AG, an international sports marketing agency.

T.E.A.M. Marketing is UEFA’s exclusive marketing agency for the exploitation of certain media and commercial rights relating to UEFA’s club competitions including the UEFA Champions League, UEFA Europa League and UEFA Super Cup.

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