‘This content is not available in your country’ – an annoying message, especially when you have paid for the service. However, a new EU regulation means you can now access Netflix, Amazon Prime and other services from any country in Europe.
The Regulation on cross-border portability of online content services in the internal market (EU) 2017/1128, also known as the “Portability Regulation”, enables consumers to access their portable online content services when they travel in the EU in the same way they can access them at home. For instance, when a French consumer subscribes to CanalPlay film and series online services, the user will be able to watch the films and series available from that service in France, when he or she goes on holidays to Spain or on a business trip to Denmark.
The portability regulation became applicable in all EU Member States on 1 April 2018 and applies to both new and existing subscriber contracts.
Online content providers (like Netflix, MyTF1 or HBO), whether their products are videos, music, games, live sport or e-books, will use their subscribers’ details to validate their home country, and let them access all the usual content and services available in that location all around the Union. This is mandatory for all paid services, who are also not permitted to charge extra for the new portability. The services provided without payment (such as the online services of public TV or radio broadcasters) will have the possibility to decide to also provide portability to their subscribers.
The Portability Regulation is part of the Initiative of the European Commission towards a Digital Single Market, which has its origin in the Commission’s communication on the Digital Single Market Strategy for Europe (COM (2015) 192 final), which was published in May 2015. The objective stated in the communication was the achievement of a Union-wide connected Digital Single Market based on three pillars:
- better access to online goods and services,
- optimum conditions for digital networks and services and
- the digital economy as a growth engine.
As a Digital Single Market, the Commission envisions a digital European single market, in which private citizens and businesses are able seamlessly to access and pursue online activities and use web applications, under conditions of fair competition and with a high level of consumer and personal data protection, irrespective of their nationality, residence or place of business.
The “Portability Regulation” therefore only governs a small part of the first pillar. It only legislates for the portability of online content outside the Member State of residence for subscribers to a service who are temporarily present in another Member State (Art. 1 (1) Portability Regulation). As such, the Portability Regulation uses a legal fiction that such a temporary presence is deemed to be a presence in the Member State of residence, see Art. 4 Portability Regulation. Therefore, it is not about consumers’ general cross-border access across the EU to online content services in Member States other than their Member State of residence. The Regulation, which implemented the Portability Regulation as one of the first projects of the “digital agenda”, thus separates the question of the portability of content services in cases of temporary presence in another Member State from the far more complex and economically more serious question of cross-border access to online content services.