Some Comments on the Proposal for a Directive on Contracts for the Supply of Digital Content
It is well known that one of the objectives of the European Commission in the framework of the Digital Single Market Strategy is to simplify consumer rules for online purchases. In the Commission’s opinion, for the single online market to work, consumers need to feel protected.
EU legislation in this matter has been adapted to the online environment in recent years. For instance, Directive 2000/31 introduced new rules in relation to electronic commercial communications and electronic contracts, Directive 2002/58 established the opting-in system for spam and Directive 2011/83 adapted the obligation to inform about the products and services and consumers’ rights to the online environment.
However, despite this legislation, the online consumer is less protected that the traditional consumer. This is due to two main reasons. First, the right to unilaterally withdraw the contract during a 14-day period that exist for purchasers of tangible products, does not apply in contracts whose object are digital contents. This is so because Art. 16 m) D. 2011/83 states that Member States shall not provide for this right in contracts for “the supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and his acknowledgment that he thereby loses his right of withdrawal”.
Second, consumers of digital contents do not enjoy the protection provided for in Directive 99/44 on guarantees of consumer goods. This Directive offers consumers different solutions in cases where the product purchased is not in conformity with the contract, the advertisements about the product, or is not fit for the purposes for which goods of the same type are normally used. This guarantee lasts for two years. Directive 2011/83 makes clear that there are “goods” and there are “digital contents” (arts. 2.3 and 2.11). In the second case, providers are not obliged to grant consumers the guarantees established in Directive 99/44 because this legal text only applies to “goods”.
This regulation leads to the following incoherence: a consumer that purchases a “traditional” products – a pair of shoes – enjoys higher protection – right of withdrawal, guarantees – than one who purchases digital content – software – in tangible format in a retail store – right of withdrawal unless the package has been unwrapped but no guarantees – or download it from a web site – neither the right of withdrawal nor guarantees –. This incoherence is unsustainable if the European Commission really want to create a digital online market. The existing regulation is conceived for a market of analog products but at present the market of digital content is becoming the rule.
Taking into account these problems, the Proposal for a Directive on contracts for the supply of digital contents is to be welcome. The Directive creates a new category of contracts “for the supply of digital contents” that includes a huge variety of situations: contracts for the downloading of digital content, contracts to enjoy the content in streaming, contracts for the storage, use and share of digital content, including applications. Furthermore, the category includes contracts concluded in exchange of a price and those where the consumer commits to provide as a counter-performance “personal data or any other data” (art. 3).
The Directive states that providers that celebrate these contracts for the supply of digital content must guarantee the conformity of the content with the contract. But when is the content in “conformity with the contract”? When it possesses “the functionality, interoperability and other performance features such as accessibility, continuity and security established in the contract”, or in the absence of these indications, when the content is “fit for the purposes for which digital content of the same description would normally be used including its functionality, interoperability and other performance features such as accessibility, continuity and security” (art. 6).
In addition, lack of conformity also results from the incorrect integration of the digital content in the computer device of the consumer as a consequence of defects in the instructions provided by the provider for such integration (art. 7).
A comparison with Directive 99/44 in relation to guarantees on tangible goods allows to conclude that the proposal for a Directive offers a much more precise regulation. This is needed in view of the technical complexity of digital contents.
In our opinion, the proposal is innovative and will help to reduce the different level of protection that presently exists between online consumers and traditional consumers. The next step should be the regulation of the right of withdrawal for contract for the supply of digital content. The use of technical protection measures allows providers to offer digital content with a test-period during which the consumer can withdraw the contract and the content is deleted. In any case, during the legislative process the Commission is facing one of the hardest lobby group, that of the ITC industry, that will surely try to reduce the obligations that the proposal establishes for Internet service providers.