Contracts for supply of digital content: A legal analysis of the Commission's proposal for a new directive

23-05-2016

The proposed directive on supply of digital content contains rules on the contractual aspects of the relationship between suppliers and consumers of digital content. The scope ratione materiae of the directive includes not only the supply of digital content to consumers in the strict sense, i.e. the supply of software, digital music, e-books, films and images, but also digital services, in particular rental of on-line computer programs, cloud computing and social media platforms. However, sale of digital content embedded in tangible goods is excluded from its scope. The scope ratione personae extends only to consumer contracts. The directive extends only to contracts concluded for consideration, which can also take the form of digital data, including personal data, provided by the consumer. Regarding criteria for evaluating the conformity of the digital content, the directive ostensibly gives precedence to the contract, before any objective measure of conformity. Subsidiary criteria for evaluating conformity include objective fitness for purpose, international technical standards, as well as public statements. The proposal takes over from the existing acquis the idea of a hierarchy of remedies, meaning that in the case of non-conformity, consumers are barred from terminating or claiming a price reduction, but must first ask the trader to bring the digital content to conformity. However, in case of non-supply, consumers have the right to terminate immediately. They also enjoy the right to terminate regardless of conformity, in cases where the trader modifies the digital content, as well as in long-term contracts. The proposal contains detailed rules on the consequences of termination, in particular with regard to the further use of the consumer's personal data by the trader, and the further use of digital content by the consumer.

The proposed directive on supply of digital content contains rules on the contractual aspects of the relationship between suppliers and consumers of digital content. The scope ratione materiae of the directive includes not only the supply of digital content to consumers in the strict sense, i.e. the supply of software, digital music, e-books, films and images, but also digital services, in particular rental of on-line computer programs, cloud computing and social media platforms. However, sale of digital content embedded in tangible goods is excluded from its scope. The scope ratione personae extends only to consumer contracts. The directive extends only to contracts concluded for consideration, which can also take the form of digital data, including personal data, provided by the consumer. Regarding criteria for evaluating the conformity of the digital content, the directive ostensibly gives precedence to the contract, before any objective measure of conformity. Subsidiary criteria for evaluating conformity include objective fitness for purpose, international technical standards, as well as public statements. The proposal takes over from the existing acquis the idea of a hierarchy of remedies, meaning that in the case of non-conformity, consumers are barred from terminating or claiming a price reduction, but must first ask the trader to bring the digital content to conformity. However, in case of non-supply, consumers have the right to terminate immediately. They also enjoy the right to terminate regardless of conformity, in cases where the trader modifies the digital content, as well as in long-term contracts. The proposal contains detailed rules on the consequences of termination, in particular with regard to the further use of the consumer's personal data by the trader, and the further use of digital content by the consumer.