As noted, the Online Portability Regulation aims to remove barriers to portability of online services and content within the EU. The regulation would be effective six months after publication of the final version without the need for implementation by Member States.
Following a consultation in 2013-2014 in which the Commission considered several options to achieve this objective, and extensive consultations, the Commission propose to ensure portability by introducing a rule into EU law that the provision, access and use of an online content service in a cross-border portability mode would be deemed to occur in the consumer's Member State of residence, so that providers could not limit subscribers’ access to and use of such services based on the location of use within the EU. The Online Portability Regulation would also impose an obligation on providers of online content services to ensure cross-border portability of such services and establish that any provisions in contracts limiting cross-border portability are unenforceable.
The Online Portability Regulation would apply to "subscribers," defined as consumers who, on the basis of a contract for the provision of an online content service, may access and use such service in the Member State of their residence. Thus, the new rules would not apply to business users.
An "online content service" would be covered when: (i) the service is lawfully provided online in the Member State of residence; (ii) the service is provided on a portable basis; and (iii) the service is an audiovisual media service or a service whose main feature is the provision of access to works, other subject matter or transmissions of broadcasting organisations.
The regulation would distinguish between two scenarios: (i) services provided (directly or indirectly) for payment of money and (ii) services provided without payment of money provided that the subscriber's Member State of residence is verified by the service provider. In other words, if a subscriber receives a free online content service, the provider will only be obliged to enable the subscriber to enjoy cross-border portability if the provider verifies the subscriber's Member State of residence. Thus, if a consumer accepts the terms and conditions of a free online content service without registering on a website (so the provider does not verify her Member State of residence), the service provider will not be obliged to provide cross-border portability for the service.
Online service providers would be obliged to enable subscribers to use online content services while subscribers are temporarily present in another Member State, with the same content, on the same range and number of devices and with the same range of functionalities as offered in the Member State of residence. Providers would not be obligated to ensure the same quality of service outside the Member State of residence, unless otherwise agreed, but they would have to inform subscribers about the quality of the online content service when accessed and used outside the Member State of residence.