Millions of digital content and services are purchased by European consumers every day. Digital content products include computer programs, eBooks and applications, as well as entertainment goods such as music, movies and games in digital form. Digital services include those that allow consumers to create, process, store or access data in digital form, such as cloud services, and services that allow the sharing of data through social media platforms.
Before the Digital Content Directive was adopted, existing EU legislation was limited to safeguarding consumers’ right for clear information and to providing protection from unfair contract terms. The new directive lays down a common set of rules with regard to the conformity of the digital content or service with the contract of sale. In other words, the content or service purchased must be provided to consumers as agreed in the sales contract.
In case a non-conformity exists at the time of supply or becomes apparent within a period of not less than two years from its supply, the trader is liable to provide a free remedy. If the trader is unable to do so within a reasonable time, consumers may claim a price reduction or cancel the contract and request a full refund. However, the right to a full refund does not apply when the non-conformity or defect does not impair the functionality, interoperability or “other main performance” features of the digital content.
The new rules will be transposed into national law by July 2021 and applicable as from January 2022
Furthermore, the directive states that while consumers are responsible to provide evidence that the digital content or service does not conform with the sales contract during the first year from the date of purchase, the burden of proof that the defect did not exist at the time of sale is on the trader. Regarding sales contracts that provide for continuous supply of digital content or services, in case of a defect the burden of proof remains with the seller throughout the duration of the contract.
In situations of non-delivery of digital content or services, consumers have the right to terminate the sales contract and be reimbursed “without undue delay” and by not later than 14 days from receipt of termination notice from the consumer. The right to terminate the sales contract also applies to consumers who provide personal data in exchange for the supply of the digital content or service. In such cases, traders have the legal responsibility to provide consumers with the technical means to retrieve at no cost the data provided or generated if that data has been retained by the trader.
The new directive also protects consumers who buy subscriptions to digital content, such as subscriptions to see films or live sport events. The terms and conditions of such subscriptions may only be changed if such modifications are allowed in the original contract. Consumers must be informed about the changes in content in advance of such changes and they must be allowed to terminate the contract within at least 30 days of being notified of the changes.
The provisions of this new legislation exclude goods with digital elements, such as smart goods, or the digital aspects embedded in such goods if they are provided with the goods under a sales contract. These goods are, however, covered by the new Sale of Goods Directive.
The new rules will be transposed into national law by July 2021 and applicable as from January 2022.
Odette Vella, Director, Information and Research Directorate