The EU Parliament and Council have provisionally agreed a draft Directive on consumer rights and digital products, which was originally proposed in 2015. According to the European Parliament, people who buy or download music, apps, games or use cloud services will be better protected if a trader fails to supply the content or service or provides a defective one.
These consumer protection rights will apply in an equal manner to consumers who provide data in exchange for such content or service and to “paying” consumers alike.
The agreed text provides that:
- in case of defective digital content or service: if it is not possible to fix it in a reasonable time, the consumer is entitled to a price reduction or a full reimbursement within 14 days,
- if a defect becomes apparent within one year of the date of supply, it is presumed that it existed already at that time, without the need for the consumer to prove it (reversal of the burden of proof); for continuous supplies, the burden of proof remains with the trader throughout the contract,
- the guarantee period for one-off supplies cannot be shorter than two years; for continuous supplies it should apply throughout the duration of the contract,
- for subscriptions to digital content for a period of time, the trader may modify the content only if it is allowed by the contract, the consumer is notified reasonably in advance and is allowed to terminate the contract within at least 30 days of notice.
Next steps
MEPs provisionally closed the negotiations on the digital content directive last week. The agreement should be officially confirmed when a deal is reached on its “twin” proposal, the sales of goods directive, as they are being treated as a package.
The provisional agreement will need to be confirmed by member states’ ambassadors (Coreper) and the Internal Market and Consumer Protection and Legal Affairs committees. It will then be put to a vote by the full House and submitted for approval to the EU Council of Ministers. This proposal, together with the one on the sales of tangible goods, is among the initiatives of the Digital Single Market Strategy.
Significance for the UK
At the moment the UK is the only EU member state with legal provisions to cover digital contracts, via the Consumer Rights Act 2015. The Directive is a maximum harmonisation instrument. This means that if the UK remains in the EEA/Single Market after its exit from the EU, and the CRA 2015 provides for stricter rules than those set out in the final version of the Directive, the UK would need to harmonise its rules to the standards set out in the Directive. In any event, UK organisations doing business with EU or EEA consumers will need to have regard to the Directive and its progress.
