MCA Guidelines on Cross-Border Portability of online content services – Regulation (EU) 2017/1128

Objectives of the Regulation

The aim of Regulation (EU) 2017/1128 (the ‘Regulation’) is to ensure that persons residing in an EU Member State who buy or subscribe to films, sports broadcasts, music, e-books and games in their home Member State are able to access this content when they travel or stay temporarily in another EU Member State.

The Regulation benefits both subscribers and providers of online content:

• Subscribers who reside in the EU can now watch films or sporting events, listen to music, download e-books or play games – when visiting or staying temporarily in other EU Member States.
• Providers of online content services will be able to provide cross-border portability of online content to their subscribers without having to acquire licenses for other territories where the subscribers stay temporarily.

Access to content when travelling

Providers of paid-for online content services (such as online movie, TV or music streaming services) have to provide their subscribers with the same service wherever the subscriber is in the EU. The service needs to be provided in the same way in other Member States, as in the Member State of residence of the subscriber.  Hence to give an example in the case of Netflix, subscribers shall have access to the same selection (or catalogue) anywhere in the EU, if they are temporarily abroad anywhere in the EU, just as if they were at home.

Time limitations and working in another member state

The Regulation covers situations in which subscribers are temporarily abroad. The term “temporarily”, though not defined in the Regulation, refers to the temporary presence of the subscriber in a Member State other than the Member State of his/her residence. Typically, this would for example refer to holidays and business trips of the subscriber to Member States other than the Member State of his/her residence.

The new rules do not set any limits for the use of the portability feature, as long as the user resides in another Member State. Service providers should inform their subscribers of the exact conditions of their portability offers.

This portability of the service provider’s online content shall also be available if a subscriber commutes daily to another Member State.

Verification of country of residence

The service provider has to verify the subscriber's country of residence. This may be done at the conclusion or subsequent renewal of the contract.

Service providers can verify the country of residence through different information provided by the subscriber. The Regulation provides for a closed list of such verification means to limit interference with a subscriber’s privacy. The verification means listed include for example payment details, payment of a licence fee for broadcasting services, the existence of a contract for internet or telephone connection, IP checks or the subscriber's declaration of their address of residence. The service provider can apply not more than two means of verification from this list. Any processing of personal data must be carried out in accordance with EU data protection law.

Free of charge online services

Providers of online content services that are free of charge, are able to choose whether they want to benefit from these the rules under the Regulation. Once they opt-in and allow portability under the Regulation, all rules will apply to them in the same manner as for paid services. This means that the subscribers will have to log-in to be able to access and use content when temporarily abroad, and service providers must then verify the Member State of residence of the subscriber.

If providers of ‘free of charge’ online content services, decide to make use of the norms under the Regulation, then they must inform their subscribers about this decision prior to providing the service. Such information could, for example, be announced on the providers' websites.

Public Broadcasters

Online content services covered by the Regulation may also include services offered by public broadcasters. Whether a particular broadcaster is covered by the Regulation depends on whether the following conditions are fulfilled:

• The subscriber can already access the services on different devices and is not limited to a specific infrastructure only,
• The TV programmes are provided to subscribers whose Member State of residence is verified by the provider and,
• The online content services are either provided against payment or the provider has decided to make use of the norms under the Regulation on a voluntary basis.

Broadcasted films in another Member States

If a broadcaster of online content in a subscriber’s home Member State is covered by the Regulation, the subscriber will be able to watch the content when he/she is temporarily abroad in another Member State.

On the contrary, accessing content that is offered in another Member State from the subscriber’s home Member State is not covered by the Regulation.

Problems solved by this Regulation

People travelling or staying temporarily in EU Member States other than the Member State where they reside have often faced restrictions: they can be cut off from their online content services or have only limited access thereto. Many people – especially when they leave for short trips – will not find it convenient to buy a subscription to a local service, or may find that their favourite films and series are not available or are available only in a foreign language.

Downloaded content

Subscribers may have been able to download content before they travelled since they were not typically able to stream content once they were in another member state.

These issues will be resolved by the new portability rules.

Online sports subscriptions

Various online sports content services will be covered. This includes services where sports programmes are part of a paid-for TV online content service or where sports are part of the overall online services package, as well as where a sports organiser sets up a dedicated online content service.

Additional charges for portability

Under the Regulation, providers of online content services will not be allowed to impose additional charges on subscribers for providing cross-border portability of their content.

Service providers who limit the titles of music, films or games available when travelling abroad

Subscribers to paid-for online content services and free online content services that have opted-in will have the same access to these services when they travel as in the Member State of their residence. This means that when accessing the service in another Member State, it will be as if they were in their home Member State: offering the same content on the same range and number of devices, and with the same range of functionalities.

Any action taken by a provider that would prevent subscribers from accessing or using the service while temporarily present in another Member State: for example, restrictions to the functionalities of the service are contrary to the Regulation.

Further information

For further information on the Cross-Border Portability of online content services Regulation, please contact the MCA on consumeraffairs@mca.org.mt or on telephone number +356 2133 6840.

Last Updated on 09/12/2020