New consumer rights for buying digital content and services – Odette Vella


Digital content and services are bought by millions of European consumers every day. Digital content products include data that is produced and provided in digital form, such as computer programs, applications and e-books, as well as digital entertainment such as music, films and games. Digital services include all services that enable users to create, process, store or access data in digital form, such as cloud services and services that enable data exchange via social media platforms or live streaming events enable.

Prior to the adoption of the Digital Content Directive, existing EU law on sales contracts – the Sale of Goods Directive – was limited to tangible goods, protecting consumers’ right to clear information and protecting them from unfair contract terms and unfair commercial practices. The new guideline defines a common set of rules for the contractual conformity of digital content or digital services.

Merchants are now obliged to make the purchased digital content or services available to consumers immediately and as agreed in the sales contract. Sellers must also ensure that consumers are informed of updates and are provided with updates that are necessary to keep the digital content or services in conformity with the sales contract for a certain period of time. This requirement also applies to contracts for the continuous supply of digital content or services.

If there is a lack of conformity at the time of delivery or if it becomes apparent within a period of at least two years from the start of delivery, the entrepreneur is obliged to provide supplementary performance free of charge. In situations where the sales contract provides for continuous delivery over a certain period of time, the entrepreneur is liable for any nonconformity throughout the duration of the contract.

In situations where the entrepreneur is unable to provide adequate free remedy within a reasonable period of time, consumers can request a price reduction or termination of the contract and a full refund. However, the right to a full refund does not exist if the non-conformity or defect does not affect the functionality, interoperability or “other key performance characteristics” of the digital content.

Any reimbursements owed by traders to consumers for non-compliance with the purchase contract must be made immediately, but no later than 14 days after receipt of the consumer’s request for a price reduction, or contract termination.

The new policy also protects consumers who purchase digital content subscriptions, e.g. B. Subscriptions to watch movies or live sporting events– Odette Vella

The right to terminate the sales contract also applies to consumers who provide personal data in exchange for the provision of the digital content or services. If this is the case, the entrepreneur is legally obliged to provide the consumer with the technical means to call up the data provided or generated free of charge, provided that this data has been stored by the entrepreneur.

The directive also states that, while the consumer is responsible for showing that the digital content or digital service is not in conformity with the sales contract, during the first year from the date of purchase, the consumer has the burden of proving that the defect was at the time of the purchase Purchase was not available The time of sale is up to the dealer. In the case of sales contracts that provide for the continuous provision of digital content or services, the burden of proof remains with the seller in the event of a defect for the entire duration of the contract.

The new policy also protects consumers who purchase subscriptions to digital content, such as subscriptions to watch movies or live sporting events. The terms of these subscriptions can only be changed if such change is permitted in the original contract. Consumers must be informed in advance of the change in content and must be able to terminate the contract with a notice period of at least 30 days.

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. However, these goods are covered by the new Sale of Goods Directive.

Other digital sales contracts not governed by these new rules include: a) the provision of services other than digital services; b) electronic communication services; c) gambling services; d) financial services; e) health care; f) Software offered by the merchant under a free and open source license for which the consumer pays no price and the personal data provided by the consumer is processed exclusively by the merchant in order to improve their security, compatibility or interoperability with special software ; g) Provision of digital content if the digital content is made available to the public in a manner other than signal transmission in the context of a performance or event, e.g. B. digital cinema screenings; and h) digital content provided in accordance with the Public Sector Information Re-use Act.

The new regulations were published with an imprint on October 29, 2021 and will come into force on January 1, 2022.


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