As we have already informed in legal circular No. 4/2018 on 3 December 2018, a new regulation governing the issue of so-called geo-blocking (hereinafter “the Regulation”) enters into force. As was also mentioned on our part, the Regulation primarily addresses three basic areas, namely the question of access to (online) interfaces of electronic commerce, the prohibition of different terms and conditions for customers from different countries, and the inadmissibility of discrimination on grounds related to payment. In this legal circular we shall deal in more detail with the first of these, namely the issue of access to (online) interfaces of electronic commerce. For better orientation, this issue can be divided into two further basic areas, namely the prohibition of blocking access to online interfaces and the prohibition of redirecting a customer without his consent.

Prohibition of blocking access to online interfaces

According to recital 18, traders should not “by using technical means or otherwise prevent customers on the basis of their nationality, place of residence or place of establishment from obtaining full and equal access to online interfaces, including in the form of mobile applications.” This idea is then normatively expressed in the provision of Article 3(1) of the Regulation: “A trader shall not, by using technical means or otherwise, block or restrict a customer’s access to the trader’s online interface on grounds relating to the customer’s nationality, place of residence or place of establishment.”

In this connection, a rather interesting question may arise from a practical point of view, namely which persons (users) must be considered a customer for these purposes. The definition of the term customer is contained in the provision of Article 2(13) of the Regulation: “customer means a consumer who is a national of a Member State or has a place of residence in a Member State, or an undertaking which has a place of establishment in a Member State…”. From this point of view, therefore, it is irrelevant where specifically the customer is located at the moment of accessing the online interface (whether within the EU or outside the EU), and conversely, the circumstance of who the customer actually is is important. However, the trader may not have information about who the specific customer (user) is at all at the moment of access to the online interface by such person. From this it thus appears to us for practice that it will not be possible to block access to any users, thus including those users who are demonstrably located outside the territory of the EU.

The prohibition of discrimination concerning access to online interfaces does not, however, mean that a trader should have an obligation to conclude a contract with every customer (such obligation does not exist even in the national context), which is also expressly mentioned in recital 18. From a practical point of view, it is therefore possible to state that if a user accesses the online interface of a shop, for example, from the territory of Portugal, such access cannot be denied. However, this does not mean that the trader would be obliged to conclude a contract with such customer or even deliver goods to Portugal.

Prohibition of redirecting a customer without his consent

Recital 20 of the Regulation states that “some traders operate different versions of their online interfaces which are targeted at customers from different Member States. Whilst this should continue to be allowed, redirecting customers from one version of an online interface to another version without their express consent should be prohibited.

This idea is then reflected in the provision of Article 3(2) of the Regulation, which provides that “a trader shall not, on grounds relating to the customer’s nationality, place of residence or place of establishment, redirect that customer to a version of the trader’s online interface which differs from the online interface to which the customer originally sought to gain access in terms of its design, use of language or other characteristics which specify this version for customers of a certain nationality, place of residence or place of establishment, unless the customer has expressly consented in advance to such redirection.”

On our part, we understand this prohibition for the area of the World Wide Web as follows. A user (customer) through his browser always directs to some specific internet address (URL) of the trader’s online interface, whether by direct entry of this address by the user or by access through a hypertext link. We would consider an automatic change (redirection) of this requested internet address to another target internet address by the trader to be “redirecting a customer” within the meaning of the Regulation. The strictest interpretation of this provision would therefore be such that a customer cannot be automatically (without his consent) redirected from the requested internet address to any other internet address. However, from the above legislative text of the Regulation it rather appears that this prohibition is not meant to be conceived so broadly. Automatic redirection of a customer without his consent should be possible if the content of the interface at the target address does not differ (from the originally requested content) “in terms of its design, use of language or other characteristics which specify this version for customers of a certain nationality, place of residence or place of establishment.” In this connection, however, one cannot forget the provision of Article 4 of the Regulation containing the prohibition of different terms and conditions for customers from different countries, to which we do not pay closer attention in this legal circular.

Furthermore, it applies that “in the case of redirection with the express consent of the customer, the version of the trader’s online interface to which the customer originally sought to gain access must remain easily accessible to that customer.” The practical realisation of fulfilment of this obligation may not, in our opinion, be entirely simple.

In conclusion, it is possible to add to this point that the prohibition of redirecting a customer without his consent does not then apply to situations where such restriction of access or redirection is necessary for the purpose of ensuring compliance with a legal obligation of the trader.

Josef Aujezdský, Advocate

Law Office Mašek, Kočí, Aujezdský www.e-Advokacie.cz – online legal counselling

This text was originally prepared by the law office Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 10/2018 intended for members of this association.

This text was translated from Czech to English using an AI translator.