Consumer Digital Contracts
Scope
A “consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession;
“Digital content” means data which are produced and supplied in digital form, including in particular computer programs, applications, video files, audio files, music files, digital games, e-books and other e-publications; A “digital content contract” means a contract under which a trader supplies or undertakes to supply digital content to a consumer, and the consumer either or both:
- pays or undertakes to pay the price of the digital content;
- provides or undertakes to provide personal data to the trader, other than where the personal data are processed by the trader only for the purpose of supplying the digital content in accordance with this Act or complying with any other legal requirement to which the trader is subject;
A “digital service” means—
- a service that allows a consumer to create, process, store or access data in digital form, or
- a service that allows the sharing of or any other interaction with data in digital form uploaded or created by a consumer or other users of that service,
It includes in particular video and audio sharing and other file hosting, social media, and word processing and games offered in the cloud computing environment;
A “digital service contract” means a contract under which (a) a trader supplies or undertakes to supply a digital service to a consumer, and the consumer either or both:
- pays or undertakes to pay the price of the digital service;
- provides or undertakes to provide personal data to the trader, other than where the personal data are processed by the trader only for the purpose of supplying the digital service in accordance with this Act or complying with any other legal requirement to which the trader is subject;
Right to supply the digital content or digital service
Where digital content or digital service is to be supplied under a digital content contract or a digital service contract the trader will ensure that he has the right to supply to the consumer at the time of supply. Where the trader does not have this right, the consumer will have the right to terminate the contract.
Where the consumer has the right to terminate the contract and wishes to terminate it, he must do so in accordance with the specified requirements and the trader must also comply with specified obligations. The burden of proof rests with the trader regarding right of supply in case of dispute.
Duty to supply digital content or digital service
Where a digital content contract or digital service contract is concluded, the trader must supply the digital content or digital service to the consumer in accordance with the contract. Where the contract is concluded, the trader must supply the digital content or digital service to the consumer, unless otherwise agreed, without undue delay after the conclusion of the contract.
Where the contract provides for continuous supply for a period specified in the contract, the trader must supply the digital content or digital service to the consumer for that period. Where a contract provides for the supply of the digital content or digital service on more than one occasion during the contract, the trader must do so on each of those occasions.
The obligation to supply will be met when the digital content or digital service can be accessed or is made accessible to a physical or virtual facility chosen by the consumer. A facility under the trader’s control or the only facility offered by the trader will not be considered chosen by the consumer. Where the trader fails to supply the digital content or digital service to the consumer in accordance with this section, he will be liable for that failure and the consumer will have a right to the remedies specifed.
Digital content or digital service to be in conformity
Where a digital content contract or a digital service contract is concluded, the trader must supply the digital content or a digital service in conformity with the contract and must meet the requirements specified below and not fall to be treated as not being in conformity under deeming provisions. Otherwise, the consumer will have the right to remedies.
Where a contract provides for continuous supply for the period specified in the contract, a short-term interruption which is more than negligible or recurs will be deemed to constitute a lack of conformity with the contract and the consumer will have the right to the specified remedies . The right to remedies also applies where non-compliance with the Data Protection Act 2018 or Regulation (EU) 2016/679 on personal data constitutes a lack of conformity with the contract.
Subjective requirements for conformity
The digital content or a digital service supplied under a digital content contract or digital service contract must conform, in particular, in regard to quantity, quality, functionality, interoperability; be fit for the agreed purpose; installed and updated as specified in the contract.
Information which the trader must provide to the consumer in a distance or off-premises contract are to form part of the contract and the digital content or digital service must comply with such terms also. Where the digital content contract or digital service contract provides for a continuous supply for a period specified in the contract, compliance must be during that period.
Objective requirements for conformity
The digital content or digital service supplied under a digital content contract or digital service contract will comply with applicable laws, standards or codes of conduct; comply with any trial version made available prior to concluding the contract; be supplied with any accessories and instructions, including installation or integration of the digital content or digital service; and possessing the features of compatibility, accessibility and security expected of digital content or digital service, particularly features referred to in any public statement. The trader is not bound by any public statement under specific conditions.
Unless agreed otherwise, the digital content or a digital service must be supplied in the most recent version available. The trader must ensure that the consumer is informed of and supplied with the updates, including security updates, necessary to keep the digital content or digital service in conformity with the contract for the relevant period. Where the trader complies with the latter, in relation to an update, he is not liable for any lack of conformity, resulting solely from the lack of that update, unless, due to shortcomings in the installation instructions, the consumer fails to install updates supplied within a reasonable time or incorrectly installed them.
Where the contract is for a continuous supply for a specified period, the digital content or digital service must be in conformity during that period. There will be no lack of conformity where the consumer was informed of and accepted a deviation from the requirements, including a lack of conformity with the contract due to a restriction resulting from a violation of an of intellectual property right or any other right of a third person, when concluding the contract. In this instance, the burden of proof rests on the trader. “Relevant period” is defined.
Incorrect integration of digital content or digital service
An incorrect integration of the digital content or digital service into the consumer’s digital environment will result in a lack of conformity with the digital content contract or digital service contract for this Part only if the integration was carried out under the trader’s responsibility or the incorrect integration was due to shortcomings in the integration instructions provided by the trader.
Implied terms of digital content contract or digital service contract
The above provisions are implied into every digital content contract or digital service contract and will have effect as if they were the terms of the contract.
Third party rights
A consumer may pursue remedies for lack of conformity where a restriction resulting from a violation of any right of a third person, particularly an intellectual property right, prevents/limits the use of the digital content or digital service.
Liability of trader under digital contract
The trader is liable to the consumer for any failure to supply the digital content or digital service under the implied conditions where the contract is concluded. The trader is liable for any lack of conformity with the digital content contract or digital service contract where the contract is for a single act of supply, or a series of individual acts of supply, of the digital content or digital service, including any lack of conformity resulting from a violation of an intellectual property or other right of a third person which exists at the time of supply.
Where updates are supplied by the trader or a person other than the trader for a single act of supply or a series of individual acts of supply of the digital content or digital service, liability applies for lack of conformity caused by an update which exists at the time of supply or installation or caused by a failure to supply an update when it should have been supplied. Where the contract is for a continuous supply of digital content or digital service for a specified period of time, the trader is liable for a lack of conformity that occurs or becomes apparent during that period.
The consumer’s right to a remedy for a lack of conformity for which the trader is liable applies for six years from the time of supply for a single act of supply or series of such acts and the time the lack of conformity occurs/becomes apparent in the time period of the contract for a continuous supply during a specified period. The failure to supply the digital content or digital service for which the trader is liable will apply for six years from the time he was required to supply either.
Burden of proof
The burden of proof is on the trader for the digital content or digital service being supplied in accordance with the implies obligation. The burden of proof is on the trader for any lack of conformity with a digital content contract or digital service contract for a single act of supply, or a series of individual acts of supply, of digital content or a digital service which becomes apparent during the period of 12 months beginning with the supply. Where the contract is for continuous supply of digital content or digital service for a specified period, the burden of proof is on the trader for a lack of conformity that becomes apparent during that period.
The latter does not apply where the trader shows that the digital environment of the consumer is not compatible with the technical requirements of the digital content or digital service and informs the consumer of this before the contract is concluded. The consumer must cooperate in ascertaining the compatibility of his digital environment, otherwise the burden of proof is on the consumer.
The obligations on the consumer will be limited to the technically least intrusive means available to him. Where the consumer fails to co-operate and the trader has informed the consumer in a clear manner, the burden of proof is on the consumer. A consumer will not be restricted from seeking a remedy after the expiry of the period of 12 months beginning with the date of supply of digital content or digital service.