We live in a world where streaming, and downloading, on mobile devices has become the norm. An April 2019 study by the Eurobarometer found that 41% of respondents who use the internet to access content have a paid subscription to audiovisual content such as films, series or TV (excluding sports), and 26% to music. Further, 68% of the 15-24 age group were aware of their ability to access paid subscriptions for online content services while travelling in other EU countries.
This content service freedom is governed by the Regulation on Cross-border Portability of Online Content Services in the Internal Market 2017 (known as the Portability Regulation), which came into force in April 2018. The Regulation allows consumers throughout the EEA to access their video on-demand and streaming services while they travel within EEA. It requires online service providers to make content available to a UK customer not only in the UK, but also when they are temporarily resident in another EEA member state. Likewise, EEA content must be available for EEA customers when in the UK.
How does the Regulation work?
More and more, online content services are marketed as a package, with no separation between content protected by copyright and content that does not benefit from such protection or related rights (to separate such content would significantly decrease the value of the service offered). A prime example would be sports events. The Portability Regulation aims to enable consumers, while temporarily abroad, to have full access to their online content services (both audiovisual media services and broadcast transmissions).
In order to verify the consumer’s country of residence, service providers such as HBO or Amazon Prime check payment details, an IP address or even the consumer’s contract with their internet provider. The Regulation extends to all providers who offer paid online content services. Free content providers also have the option of extending portability to their subscribers. However, they are under no obligation to offer free UK streaming content for temporary use in the EEA: thus, for example, the BBC iPlayer service is not yet available outwith the UK.
This Regulation has become even more relevant since the Regulation on International Roaming came into force. It means that consumers can use their mobile data at their domestic rates, irrespective of where they are travelling in the EU. Together the Regulations mean customers can download content while abroad, using their mobile devices, for the same price as within their home country.
The Brexit effect
The United Kingdom left the EU on 31 January 2020 and the transition period has begun. Many UK consumers have yet to realise the raft of benefits they will lose once this period is over. One is being able to access their online content services on the move when they travel within the EEA as if they were at home. For example, many UK consumers enjoy accessing their Netflix, Sky Go, Amazon Prime and Spotify accounts while holidaying or travelling in Spain or France.
Once the transition period has expired, the Portability Regulation will be revoked in the UK, and will cease to apply to UK-EEA travel. In addition, “surcharge free” roaming will no longer be guaranteed unless mobile operators retain their roaming policies to maintain the benefits we currently enjoy. In any event, the UK Government intends (under the draft Mobile Roaming (EU Exit) Regulations 2019, which amends Regulation (EU) No 531/2012 of the European Parliament and Council on roaming on public mobile communications networks within the Union, recast) to apply financial limits on mobile data usage while consumers are abroad. This provides the limited protection of putting a financial cap on monthly billing unless the consumer actively chooses to continue spending.
What does this mean for consumers?
The revocation of the Regulation means that online content service providers will no longer be required to provide content available in the UK to a UK customer while they travel within the EEA. If you are asking, “Does this mean I will no longer be able to watch Stranger Things while waiting to catch my flight in Barcelona?”, that will ultimately depend on the service provider.
What does this mean for providers?
The revocation does not prevent service providers from voluntarily offering UK content to UK customers while they travel. However, the service provider will have to ask the content owner’s permission to extend the content to the EEA, to enable an extension of the rights granted under the content licence. This means that online content service providers will have to renegotiate their agreements with the rights holder to be able to continue to provide the portability freedom (both in the UK and across EEA member states) after the transition period has ended. Failing to do so could risk infringing the rights of the licensors. The other option would be to cease providing the portability option after the transition period.
Depending which path providers take, they will need to consider updating their terms of service and advising consumers of the change in service.
Sophie Graham, senior solicitor, Wright, Johnston & Mackenzie LLP