Digital Consumer Remedies
Remedy for failure to supply
Where a trader fails to supply the digital content or digital service and if they then fail to comply with a consumer’s request to do so without undue delay or within such agreed additional period, the consumer will have the right to terminate the contract. The consumer has the right to terminate the contract immediately if the trader will not supply the digital content or digital service or fails to do so at a particular date and time for the supply which is essential for the consumer. The exercise of the rights of the consumer and the obligations complied with by the trader are those set out below.
Conformity with contract
Where there is a lack of conformity of the digital content or digital service with a digital content contract or digital service contract the consumer has the right to have it brought into conformity with the contract. The rights of the consumer will not apply if conformity is impossible or would impose disproportionate costs on the trader.
The trader must bring the digital content or digital service into conformity with the contract free of charge, within a reasonable time and without any significant inconvenience to the consumer. The reasonable time will be the shortest possible time necessary and will be objectively determined having regard to specific criteria.
Right to proportionate reduction
Where the consumer
- has exercised his rights and the trader has not brought the digital content or digital service into conformity;
- the same or different lack of conformity appears despite the trader’s attempt to bring it into conformity;
- the lack of conformity is of such serious nature to justify immediate price reduction or termination of contract;
- the trader has declared or it is clear that he will not bring the digital content or digital service into conformity within a reasonable time or without inconvenience to the consumer
the following rights apply.
If under the contract the digital content or digital service is supplied in exchange for payment of the price, the consumer will have the right to a proportionate reduction in the price or to terminate the contract. The consumer may terminate the contract only if the lack of conformity is not minor. Where the digital content or digital service is supplied other than for payment of the price, the consumer will have the right to terminate the contract.
In determining whether the lack of conformity is of such a serious nature to result in an immediate price reduction or termination of the contract account will be taken of the nature and severity of the lack of conformity. In this case, the burden of proof is on the trader in a dispute to show that the lack of conformity is minor.
Price Reduction:
Where the consumer has the right to a price reduction, he may require the trader to reduce the price required under the digital content contract or digital service contract or receive a reimbursement in excess of the amount of the reduction applicable. The reduction in the price must be proportionate to the decrease in value of the digital content or digital service supplied compared to their value if in conformity.
The reduction in price will apply for the period during which the digital content or digital service was not in conformity with the contract where the supply for a period specified was in exchange for the payment of a price. The trader will reimburse the consumer as required.
Modification of digital content or digital service
Where the digital content contract or the digital service contract provides that the digital content or digital service supplied/made accessible to the consumer for a period specified in the contract and the specified conditions are met, they can be modified by the trader beyond what is necessary to keep it in conformity with the contract if certain conditions are met. The consumer may terminate the contract free of charge if the modifications affect access/use by the consumer.
The consumer does not have the right to terminate the contract if the negative effect of modification is minor or the unmodified content/service is maintained without extra cost and is in conformity with the contract. The effect of the modification of the digital content or digital service on the access/use by the consumer will be ascertained under specific criteria.
Where the consumer has the right to terminate the contract, he can do so before the expiry of 30 days beginning on the day of being informed of the modification or on the day when modified by the trader, whichever is later. In such cases, the trader will comply with his obligations and reimburse the consumer as required. Where the trader has modified the digital content or digital service and enabled the consumer to maintain the unmodified version and it does not meet the requirements for conformity, the consumer is entitled to the specified. This does not apply to a bundle within the application of Directive (EU) 2018/1972.
Right to terminate contract other than digital content contract or digital service contract
Where digital content or a digital service is supplied under a contract that also provides for the sale of goods or supply of a service, the consumer can terminate the contract if (i) they would be entitled to terminate the contract if it were a digital content contract or digital service contract only and (ii) the value of the goods or service would be reduced in the absence of the digital content or digital service.
The latter is determined taking the circumstances into account. This does not apply to a bundle within the scope of Directive (EU) 2018/1972.
Obligations of consumer in event of termination
Where the consumer has a right to terminate a digital content contract or a digital service contract, he will do it by means of a statement to the trader. On and after terminating the contract, the consumer must not use or make available to any third person the digital content or digital service. The consumer must return the tangible medium where digital content was supplied without delay on request from the trader.
The consumer is not liable to pay for the use of the digital content or digital service which was not in conformity with the contract prior to termination. If the consumer fails to comply with the obligation of not using the digital content or digital service or not making it available to any third person or returning the digital content to the trader, the consumer will be liable in damages for any loss or damage suffered by the trader as a result of the failure. The consumer’s liability in damages is without prejudice to any other remedies available to the trader.
Obligations of trader where contract terminated
Where the contract for supply of digital content or digital service is terminated, the trader must reimburse the consumer for payments made. Where supply is over a period specified in the contract in exchange for payment of a price and conformity has taken place for a period before termination of the contract, the reimbursement will be proportionate to the period of non-conformity and any price paid for any period of the contract that would have remained if not terminated.
The trader may request return of the tangible medium without delay under which digital content was supplied. Such a request must be made within 14 days of the day the trader was informed of the decision to terminate the contract and the trader will be liable for the cost of returning the tangible medium. The trader must not use content provided or created by the consumer when using the digital content or digital service,except in specific circumstances, where the content is not personal data.
The trader must make available to the consumer, at their request, any digital content, other than personal data, which was provided or created by them except for some of the specified circumstances referred to. The consumer is entitled to retrieve the digital content made available to him free of charge, without hindrance, within a reasonable time and in a commonly used format. Without prejudice to the above, the trader may prevent any further use of the digital content or digital service by the consumer.
Where the trader is required to reimburse the consumer due to a price reduction or termination of a contract, the trader must do so without undue delay and before the expiry of 14 days beginning on the date when the trader was informed of the consumer’s decision to invoke his rights, make payment in the same way as the consumer used to pay for the digital content or digital service unless otherwise agreed to by the consumer, without any fees being incurred.
Rights of Parties
Where reimbursement relates to digital content supplied on a tangible medium, it may be withheld by the trader until he has received the tangible medium back or received evidence of its return. If a trader fails to reimburse the consumer, he will be liable in damages for any loss or damage suffered by the consumer as a result of the failure.
Tthe consumer has the right to withhold any outstanding part of the payment to the trader until his obligations are fulfilled, in a proportionate manner to the decrease in value of the digital content or digital supply that does not conform with the contract. The consumer’s decision to withhold payment will be expressed in a statement to the trader.
Effect on other Contracts
Where a consumer terminates a digital content contract or a digital service contract under section 66, any ancillary contracts will be terminated also without any costs incurred. The trader so informed will inform any other trader who had ancillary contracts with the consumer.
Obligations apply to both trader and consumer where an ancillary contract is terminated. Any security provided under a terminated ancillary contract will be treated as having no effect and any property lodged in this regard must be returned immediately by the trader or third party. “Ancillary contracts” are defined in this section.
Contract Rights
A term of a digital content contract or digital service contract or any other contract will not exclude or restrict the trader’s liability under specified provisions and in specified ways. Any such term will not be binding on the consumer. A written agreement to submit present or future disputes to an alternative dispute resolution procedure will not contravene this section. A trader who contravenes this commits an offence.
The trader is liable to the consumer due to any failure to supply or lack of conformity of the digital content or digital service under a digital content contract or digital service contract resulting from an act or omission of a person in the chain of transactions in the contract, he may pursue remedies against the person liable for the failure or lack of conformity.
Other remedies provides that the remedies available under Chapter 3 will not affect the right of the consumer to pursue other specified remedies (without recovering for the same loss twice) where digital service contract, or the trader otherwise fails to comply with the requirements of this Part.