Digital Single Market – Portability Regulations
Regulation (EU) 2017/1128 (the Portability Regulation), which came into force in 2018, 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 resident 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.
What does it mean in practice?
Essentially, a subscriber must be able to access the same catalogue of content that they can access in their home country. There must be no difference between the content, the devices on which it is made available, the number of users to whom it is made available, or the range of functions in the service. However, there is no requirement for the provider to give the subscriber access to the content available in the local territory, although they can do so if they choose.
The service provider must not charge any extra fees for porting access. They also cannot intentionally reduce the quality of a service that is ported to a different country, and they of course have to honour any quality guarantees they make to their customers regardless of where the service is accessed. Any contract term that limits portability will be unenforceable.
What services must be portable?
Any paid-for audiovisual media service or service facilitating access to such media. Which means on-demand services (such as Netflix and Amazon Prime), online TV (Sky’s Now TV and BT Sport), music streaming (Apple Music and Spotify) and online games platforms (such as Steam or Origin).
It doesn’t apply to public broadcasters such as the BBC because public broadcasting isn’t considered to be a service provided in exchange for the payment of money, nor is it a service that is provided through the generation of advertising revenues. It also does not apply to business-to-business services.
When is someone temporarily present?
The regulations say that a subscriber will be temporarily present when they are in different country to their country of residence ‘for a limited period of time’, and give some examples such as leisure, travel, business trips or learning mobility. The provider has to judge the difference between permanent and temporary residence. For example, some providers say that customers can view ported content abroad for a specific number of continuous days after which they must view it in their country of permanent residence or risk losing access. Other providers retain some discretion by saying ported content can be viewed so long as the user is away ‘temporarily’.
The risk for providers is that if they grant too long a period when ported content can be viewed, it could lead to claims by the holders of copyright that permanent contractual territorial restrictions are being infringed. On the other hand, they may be in breach of the regulations if the period is too short.
The regulations specify that the delivery of the content is deemed to take place solely in the subscriber’s country of residence, to avoid the need to renegotiate providers’ current licenses.
How can a provider check residency of a subscriber?
Under the regulations, a provider can verify the subscriber when they enter or renew the contract and there is a long list of the identifiers they can use, such as by checking payment details, identity documents, the billing address of the subscriber, or their IP address. If the provider has reasonable doubts about a subscriber’s residency, they can repeat the checks and choose which method of verification they use, including IP addresses.
The provider needs to consider how to carry out the checks while complying with the requirements of GDPR. The regulations anticipate this by saying that verification must include limiting the collection of data to what is necessary and proportionate, using it solely for the purpose of verifying residency and immediately destroying the data on completion of each verification.
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