Cross-border portability of online content services now effective in the EU

The regulation on the cross-border portability of online content services in the internal market was finally approved on June 8. It ensures cross-border access to mobile online services (e.g. the streaming or downloading of music, games, films, entertainment programmes or sport events) when subscribers travel temporarily abroad, for purposes of study, holiday or business. EU regulations does not require national implementing measures and thus this new measure will enter into force throughout the EU at the same time, with mandatory effect nine months from its official publication.

The regulation, which is intended to pair with the end of roaming charges, applies to online content services provided against the payment of money, who are under the obligation to enable portability of their services. Free services may enable temporary cross-border access to their subscribers, as long as they can verify their member State of residence. The regulation establishes a legal fiction, whereby the provision of the service, as well as access and use of that service, are deemed to happen only in the member State where the subscriber has his/her stable residence. Unless content right holders wave this obligation, the provider must verify the subscriber's member State of residence, at the conclusion or upon renewal of the contract for the subscription of services, by using not more than two of the means of verification listed by the regulation. Portability must not generate additional charges for the subscribers. Temporary presence in another member State is defined as "being present in a member State other than the member State of residence for a limited period of time". There is therefore no time cap, other than the subscription's renewal date - where the country of habitual residence may be verified again.

The regulation was intended to meet the concerns of a large number of consumers across the EU. Various stakeholders, including performers, hoped that it would shift the focus away from pure cross-border content access (i.e. allowing consumers to access online content provided other than from their member State of residence), which poses a clear threat to territorial licensing and investment in the audiovisual sector. As it happens, though, the page has not been turned completely and a new, much more challenging fight is now raging with respect to a possible extension of the country of origin principle to the online provision of broadcast services.