What’s the issue?
The Digital Single Market (DSM) strategy is an EU project designed to overhaul laws applying to the digital world in order to break down barriers and create a digital single market. In the two years since the ambitious strategy was launched, the Commission has delivered 35 policy initiatives with more to come. These have met with varying levels of success; some like the General Data Protection Regulation (which was tabled long before the launch of the DSM Strategy) are now in force, others, like the consumer protection proposals, have not seen much progress.
What’s the development?
One of the Commission’s successes is the Regulation on the Portability of Online Content, which was concluded earlier this month and will shortly be published in the Official Journal. The overarching aim of the Regulation is to ensure that consumers can benefit from online content services they have lawfully paid for, when they are temporarily in Member States outside their State of residence. This will benefit EU citizens on holiday, travelling in the EU on business, or temporarily studying in another Member State.
Online content service providers are required to allow subscribers temporarily present in a Member State other than the one they are ordinarily resident in, to access the same content on the same terms and without any additional charge. Providers are required to verify the Member State of residence of the subscriber using up to two listed identifiers. If they cannot carry out the verification because the subscriber fails to provide it, the Regulation does not require the provider to supply cross-border access to content for that subscriber. Rights holders may, however, authorise access without such verification.
Online service providers of free content can choose to enable cross-border access by its subscribers provided verification of the subscriber’s Member State of residence is carried out.
Any contractual provisions, whether between the rights holders and the service providers or the service providers and the consumers, which attempt to exclude or limit the application of the Regulation, will be unenforceable, including choice of law clauses.
The Regulation will apply retrospectively to contracts concluded before it comes into effect. Online content service providers have specified time limits for carrying out verification procedures for pre-existing customers (likely to be two years). The Regulation also deals with data protection requirements in relation to verification, highlighting the need for purpose limitation, data minimisation and deletion of data.
The Regulation will shortly be published in the Official Journal and will then come into force nine months after that (so by the end of Q1 2018).
What does this mean for you?
Essentially, for the average punter, it means that if you are an EU subscriber, you can watch your favourite Amazon Prime Video or Netflix shows anywhere in the EU if you are temporarily out of your Member State of residence.
Content service providers have some additional hurdles to face by having to engage in the verification procedure (although in reality, they may not find this too onerous as they are likely to possess relevant information already). Neither content service providers nor content rights holders will be able to contract out of the Regulation or restrict its application in any way. Unless they cannot verify the country of residence of the subscriber, they will need to allow lawfully acquired paid-for content to be viewed across the EU.