The European Parliament approved a new Regulation that introduces a common approach in the European Union to the cross-border portability of online content services. The Regulation ensures that subscribers to portable online content services that are lawfully provided in their Member State of residence can access and use those services when temporarily present in a Member State other than their Member State of residence.
To this end, providers of an online content service for fees now have new obligations:
• An obligation to enable cross-border portability of online content services. Providers must enable subscribers who are temporarily present in another Member State to access and use the online content service on the same conditions as in the Member State of residence without any additional charge to subscribers;
• The quality of the online content services provided. Providers are not obliged to ensure subscribers the same level of quality of the online content service provided when accessing them in a Member State other than their residence, but they must inform subscribers of the quality of these services available when they are being accessed in another Member State;
• Verifying Member State of residence. Upon concluding or renewing an agreement, the provider must verify the subscriber’s Member State of residence by using reasonable, proportionate and effective means. For example, verification can use a valid identity document confirming the subscriber’s Member State of residence, payment details such as the bank account or credit or debit card number of the subscriber, or an internet protocol (IP) address check;
• The protection of personal data. When verifying the Member State of residence, providers must comply with the applicable data protection laws. Collected data must be used solely for verification purposes and upon completion of each verification, all data must be immediately and irreversibly destroyed.
The Regulation applies irrespective of the law applicable to agreements concluded between providers of online content services and holders of copyright or related rights, or to agreements concluded between such providers and their subscribers. Furthermore, any contractual provisions which are contrary to the Regulation, including those which prohibit cross-border portability of online content services or limit such portability to a specific period, are unenforceable.
The Regulation does not apply to providers offering online content services free of charge, but they can decide to enable subscribers who are temporarily present in a Member State to access and use the online content service according to the Regulation’s provisions.
The European Parliament entered into force the Regulation (EU) 2017/1128 on cross-border portability of online content services in the internal market („Regulation”) on June 14, 2017. The Regulation will enter into force on July 19, 2017, and will apply from March 20, 2018.