19 Jul 2017 Unrestricted online access throughout EU to paid-for content from March 2018
The Portability Regulation was implemented at the end of last month and will come into force in all EU Member States, including the UK, in March 2018. The Regulation aims to achieve seamless access to online content services throughout the EU, and is one of the many initiatives to be introduced as part of the EU’s Digital Single Market project.
The purpose of the Portability Regulation is to “ensure that consumers can use portable online content services, which offer access to content such as music, games, films, entertainment programmes or sports events, not only in their Member State of residence but also when they are temporarily present in another Member State for purposes such as leisure, travel, business trips or learning mobility.”
It will be mandatory for an online service provider to provide its paying subscribers and consumers with portability, although portability of free content is not mandatory and is left to the service provider’s discretion. (If free content is made portable however, it must be done so in accordance with the Regulation).
In order for a subscriber to enjoy the cross-border portability of their online service, they must prove that they are normally legally resident in the Member State in which they purchased their subscription or content. The onus is on the service provider to verify each subscriber’s residence, using two of the proscribed methods of identification, some of which are:
(a) Identity card, electronic means of ID or any other valid ID document;
(b) Bank account, credit card or debit card details;
(c ) Billing address or postal address of subscriber (only valid if in combination with (a) or (b));
(d) Internet Protocol address check (only valid if in combination with (a) or (b)).
Verification information must be obtained not only from new subscribers but also from existing subscribers, by 20 May 2018.
The service provider must make no additional charges for portability, although they will not be held responsible if there are local additional charges in the Member State that is being visited.
The Regulation recognises that the level of portability that an online service provider can give might be restricted by its licences from rights holders. For instance, the provider of a music streaming service may be required in its licence from a music rights holder to block access to that rights holder’s content in a certain Member State (usually because the licensor does not itself have rights in that territory). How then is that streaming service provider to ensure portability for a subscriber who is visiting the unlicensed Member State, while blocking residents of that same Member State? The Regulation allows for this by creating a legal fiction, which says that the visiting subscriber, in using their subscription while temporarily resident abroad, is in fact accessing the service from their home State. This must be stated on the service provider’s website.
Service providers will not be required to ensure that the level of quality is the same in the Member State that is being visited as in the subscriber’s home State. The provider must however inform the subscriber, by stating somewhere on its website for instance, that the quality of the service may vary in different Member States.
This Regulation cannot be contracted out of. Licensors of content however, have the right to include in the licence permission for the service provider to waive the verification of residence requirement.
It is not entirely clear how this Regulation will operate post-Brexit; a particularly hard Brexit could result in technical and legal problems which render unworkable the reciprocal arrangements needed for this Regulation to function.
If you are an online service provider and you would like more information and advice on the Portability Regulation, or assistance with compliance (such as amending the wording on your website), please contact Victoria on 07887 810020 or firstname.lastname@example.org