Description
Key Technology and Privacy Trends for 2016
Regulation on the cross border portability of
online content services
What do the proposals aim to do?
The Regulation focuses on removing restrictions which
prevent EU citizens who have paid for online services in their
home country from being able to access such services when
temporarily present in a different Member State.
other than the one in which he/she is resident. This has given
rise to concerns that the reforms may result in customers buying
cheap subscriptions from Member States where citizens pay less
for such online content in order to avoid paying higher domestic
subscription charges.
Consequences:
 Online content providers will be required to remove any
The Regulation will apply to all providers of ‘online content
services’. This includes:
 audio-visual media services provided online on a portable
basis with a function to “inform, entertain and educate the
general public”. Examples of audio-visual media services
include Netflix and Amazon Prime Instant Video; and
 the provision of access to and use of other works and
transmissions of broadcasting organisations, whether live or
‘on-demand’.
This includes subscription services such as Sky Sports & Movies, BT Sport, BBC iPlayer, 4oD and HBO. What are the implications of the proposals? The Regulation entitles subscribers to online content services in one Member State to access and use these services when ‘temporarily present’ in another Member State. For example, a UK subscriber to Sky Sports would be able to access the same online service whilst on holiday in Spain. ‘Temporarily present’ is defined very broadly to include any situation where a subscriber is present in any Member State     1 restrictions they currently implement which prevents online services being accessed by EU citizens when travelling across Europe. In the absence of clear guidance on the meaning of “temporarily present”, online service providers will review and possibly increase subscription charges in certain Member States (where historically rates have been lower) so as to hedge against any adverse impact on sales in higher charging Member States. The Regulation will not permit organisations to mitigate the Regulation’s effects by changing the content or format of the services in order to reduce cross-border portability. Online service providers will not be obliged to meet the same quality standards of domestic subscriptions, for instance due to variances across Member States in respect of their internet capabilities. Businesses cannot contract out of these provisions and any contractual terms which are contrary to the obligations of the Regulation will be unenforceable. The Court of Appeal decision is currently the subject of a Supreme Court appeal. If you would like more information about the topics raised in this briefing, please speak to your regular contact at Weil or to any member of the Technology & IP Transactions Group: Barry Fishley Bio Page barry.fishley@weil.com +44 20 7903 1410 ©2016 Weil, Gotshal & Manges. All rights reserved.
Quotation with attribution is permitted. This publication is provided for general information purposes only and is not intended to cover every aspect of corporate governance for the featured jurisdictions. The information in this publication does not constitute the legal or other professional advice of Weil, Gotshal & Manges.
The views expressed in this publication reflect those of the authors and are not necessarily the views of Weil, Gotshal & Manges or of its clients. The contents of this publication may contain attorney advertising under the laws of various states. Prior results do not guarantee a similar outcome. If you require specific legal advice then please contact any of the lawyers listed above. The firm is not authorised under the Financial Services and Markets Act 2000 but we are able, in certain circumstances, to offer a limited range of investment services to clients because we are authorised and regulated by the Solicitors Regulation Authority.
We can provide these investment services if they are an incidental part of the professional services we have been engaged to provide. We currently hold your contact details, which we use to send you information about events, publications and services provided by the firm that may be of interest to you. We only use your details for marketing and other internal administration purposes. If you would prefer not to receive publications or mailings from us, if your contact details are incorrect or if you would like to add a colleague to our mailing list, please log on to www.weil.com/weil/ subscribe.html, or send an email to subscriptions@weil.com. Weil, Gotshal & Manges www.weil.com 4 .
This includes subscription services such as Sky Sports & Movies, BT Sport, BBC iPlayer, 4oD and HBO. What are the implications of the proposals? The Regulation entitles subscribers to online content services in one Member State to access and use these services when ‘temporarily present’ in another Member State. For example, a UK subscriber to Sky Sports would be able to access the same online service whilst on holiday in Spain. ‘Temporarily present’ is defined very broadly to include any situation where a subscriber is present in any Member State     1 restrictions they currently implement which prevents online services being accessed by EU citizens when travelling across Europe. In the absence of clear guidance on the meaning of “temporarily present”, online service providers will review and possibly increase subscription charges in certain Member States (where historically rates have been lower) so as to hedge against any adverse impact on sales in higher charging Member States. The Regulation will not permit organisations to mitigate the Regulation’s effects by changing the content or format of the services in order to reduce cross-border portability. Online service providers will not be obliged to meet the same quality standards of domestic subscriptions, for instance due to variances across Member States in respect of their internet capabilities. Businesses cannot contract out of these provisions and any contractual terms which are contrary to the obligations of the Regulation will be unenforceable. The Court of Appeal decision is currently the subject of a Supreme Court appeal. If you would like more information about the topics raised in this briefing, please speak to your regular contact at Weil or to any member of the Technology & IP Transactions Group: Barry Fishley Bio Page barry.fishley@weil.com +44 20 7903 1410 ©2016 Weil, Gotshal & Manges. All rights reserved.
Quotation with attribution is permitted. This publication is provided for general information purposes only and is not intended to cover every aspect of corporate governance for the featured jurisdictions. The information in this publication does not constitute the legal or other professional advice of Weil, Gotshal & Manges.
The views expressed in this publication reflect those of the authors and are not necessarily the views of Weil, Gotshal & Manges or of its clients. The contents of this publication may contain attorney advertising under the laws of various states. Prior results do not guarantee a similar outcome. If you require specific legal advice then please contact any of the lawyers listed above. The firm is not authorised under the Financial Services and Markets Act 2000 but we are able, in certain circumstances, to offer a limited range of investment services to clients because we are authorised and regulated by the Solicitors Regulation Authority.
We can provide these investment services if they are an incidental part of the professional services we have been engaged to provide. We currently hold your contact details, which we use to send you information about events, publications and services provided by the firm that may be of interest to you. We only use your details for marketing and other internal administration purposes. If you would prefer not to receive publications or mailings from us, if your contact details are incorrect or if you would like to add a colleague to our mailing list, please log on to www.weil.com/weil/ subscribe.html, or send an email to subscriptions@weil.com. Weil, Gotshal & Manges www.weil.com 4 .
