Digital Consumer Remedies
Consumer Rights Act 2022
Consumer remedies in digital content contracts and digital service contracts
Remedy for failure to supply digital content or digital service
60. (1) Where a trader—
(a) fails to supply digital content or a digital service under a digital content contract or digital service contract in accordance with section 51 , and
(b) fails to comply with a subsequent request from a consumer to supply the digital content or digital service without undue delay or within such additional period as may be expressly agreed between the parties,
the consumer shall have the right to terminate the digital content contract or digital service contract.
(2) Subsection (1) shall not apply, and the consumer shall have the right to terminate the contract immediately (and without making a request referred to in subsection (1)(b)), where—
(a) the trader has declared that the trader will not supply the digital content or digital service or it is equally clear from the circumstances that the trader will not do so, or
(b) the consumer and the trader have agreed, or it is apparent from the circumstances at the time of the conclusion of the contract, that it is essential for the consumer that the digital content or digital service be supplied before a particular date and time and the trader fails to supply the digital content or digital service on or before that date and time.
(3) Where the consumer has the right to terminate the digital content contract or digital service contract under subsection (1) or (2) and wishes to exercise that right—
(a) the consumer shall exercise that right in accordance with section 66 , and
(b) the trader shall comply with the obligations in section 67 .
Right to have digital content or digital service brought into conformity with contract
61. (1) Subject to subsection (2), where digital content or a digital service is not in conformity with the digital content contract or digital service contract, the consumer shall have the right to have the digital content or digital service brought into conformity with the contract in accordance with subsection (3).
(2) Subsection (1) shall not apply where—
(a) it would be impossible to bring the digital content or digital service into conformity with the digital content contract or digital service contract, or
(b) bringing the digital content or digital service into conformity with the digital content contract or digital service contract would impose disproportionate costs on the trader taking into account all the circumstances of the case including in particular—
(i) the value that the digital content or digital service would have if there were no lack of conformity, and
(ii) the significance of the lack of conformity.
(3) The trader shall bring the digital content or digital service into conformity with the digital content contract or digital service contract—
(a) free of charge,
(b) within a reasonable time after being informed by the consumer of the lack of conformity with the digital content contract or digital service contract, and
(c) without significant inconvenience to the consumer, taking account of the nature of the digital content or digital service and the purpose for which the consumer required the digital content or digital service.
(4) The reasonable time for bringing the digital content or digital service into conformity with the contract under subsection (3)(b) shall be the shortest possible time necessary for remedying the lack of conformity of the digital content or digital service with the contract, having regard to—
(a) the nature and complexity of the digital content or digital service,
(b) the nature and severity of the lack of conformity, and
(c) the effort needed to bring the digital content or digital service into conformity with the digital content contract or digital service contract.
Right to proportionate reduction in price or termination of contract
62. (1) This section applies where—
(a) by virtue of section 61 (2), the consumer does not have the right specified in section 61 (1),
(b) the consumer has exercised his or her right under section 61 (1) and the trader has not brought the digital content or digital service into conformity with the digital content contract or digital service contract in accordance with section 61 (3),
(c) the same or a different lack of conformity appears despite the trader’s attempt to bring the digital content or digital service into conformity with the digital content contract or digital service contract,
(d) the lack of conformity is of such a serious nature as to justify an immediate reduction in the price or termination of the digital content contract or digital service contract, or
(e) the trader has declared, or it is clear from the circumstances, that the trader will not bring the digital content or digital service into conformity with the digital content contract or digital service contract within a reasonable time or without significant inconvenience for the consumer.
(2) If under the digital content contract or digital service contract the digital content or digital service is supplied for the payment of a price, the consumer shall have the right—
(a) to a proportionate reduction in the price in accordance with section 63 , or
(b) subject to subsection (3), to terminate the contract in accordance with section 66 .
(3) The consumer shall have the right to terminate the contract under subsection (2) only if the lack of conformity with the contract is not minor.
(4) If under the digital content contract or digital service contract the digital content or digital service is supplied other than for the payment of a price, the consumer shall have the right to terminate the contract in accordance with section 66 .
(5) In determining for the purpose of subsection (1)(d) whether the lack of conformity of the digital content or digital service with the digital content contract or digital service contract is of such a serious nature as to justify an immediate reduction in the price or termination of the contract, regard shall be had to the nature and severity of the lack of conformity, including whether that lack is such that—
(a) the consumer cannot maintain confidence in the ability of the trader to bring the digital content or digital service into conformity with the contract, and
(b) the ability of the consumer to make normal use of the digital content or digital service is severely affected and the consumer cannot reasonably be expected to trust that it would be remedied by the trader’s attempt to bring the digital content or digital service into conformity with the contract.
(6) In case of dispute, it shall be for the trader to show that the lack of conformity of the digital content or digital service with the digital content contract or digital service contract is minor for the purposes of subsection (3).
Price reduction: digital content contract or digital service contract
63. (1) This section applies where the consumer has the right under section 62 (2)(a) to a proportionate reduction in the price.
(2) The right of the consumer under this section is the right—
(a) to require the trader to reduce in accordance with subsection (3) the price that the consumer is required to pay under the digital content contract or digital service contract, or
(b) to receive from the trader a reimbursement of the price paid by the consumer in excess of the amount of the reduction applicable under subsection (3).
(3) The reduction in the price shall be proportionate to the decrease in the value of the digital content or digital service supplied to the consumer compared with the value that the digital content or digital service would have if it were in conformity with the digital content contract or digital service contract.
(4) Where the digital content contract or digital service contract provides that the digital content or digital service shall be supplied for a period specified in the contract in exchange for the payment of a price, the reduction in price shall apply to the period during which the digital content or digital service was not in conformity with the digital content contract or digital service contract.
(5) Where the consumer has the right to reimbursement under subsection (2)(b), the trader shall reimburse the consumer in accordance with section 68 .
Modification of digital content or digital service
64. (1) Where—
(a) the digital content contract or digital service contract provides that the digital content or digital service is to be supplied or made accessible to the consumer for a period specified in the contract, and
(b) the conditions specified in subsection (2) are met,
the trader may modify the digital content or digital service beyond what is necessary to maintain the digital content or digital service in conformity with the digital content contract or digital service contract.
(2) The conditions referred to in subsection (1) are—
(a) the digital content contract or digital service contract allows, and provides a valid reason for, such a modification,
(b) such a modification is made without additional cost to the consumer,
(c) the consumer is informed in a clear and comprehensible manner of the modification, and
(d) the consumer is informed reasonably in advance on a durable medium of the features and time of the modification and of—
(i) the right to terminate the digital content contract or digital service contract in accordance with subsection (3), or
(ii) the possibility to maintain the digital content or digital service without such a modification in accordance with subsection (4)(b).
(3) Subject to subsection (4), the consumer shall have the right to terminate the digital content contract or digital service contract free of charge if the modification of the digital content or digital service negatively affects the consumer’s access to, or use of, the digital content or digital service.
(4) The right of the consumer to terminate the digital content contract or digital service contract under subsection (3) shall not apply if—
(a) the negative effect of the modification on the consumer’s access to, or use of, the digital content or digital service is minor, or
(b) the trader has enabled the consumer to maintain the unmodified digital content or digital service without additional cost, and the unmodified digital content or digital service remains in conformity with the digital content contract or digital service contract.
(5) In objectively ascertaining the effect of the modification of the digital content or digital service on the consumer’s access to, or use of, the digital content or digital service, regard shall be had to—
(a) the nature and purpose of the digital content or digital service, and
(b) the quality, functionality, compatibility and other main features normally found in digital content or a digital service of the same type.
(6) Where the consumer has the right to terminate the digital content contract or digital service contract under subsection (3) and wishes to exercise that right—
(a) the consumer shall exercise the right in accordance with section 66 before the expiry of the period of 30 days beginning on whichever is the later of—
(i) the day on which the consumer was informed of the modification, and
(ii) the day on which the digital content or digital service was modified by the trader,
and
(b) the trader shall—
(i) comply with the obligations under section 67 , and
(ii) make any reimbursement due to the consumer in accordance with section 68 .
(7) Where—
(a) the trader has—
(i) exercised the power conferred by subsection (1), and
(ii) enabled the consumer to maintain the unmodified digital content or digital service,
and
(b) that digital content or digital service does not satisfy the requirements of sections 53 to 55 ,
the consumer shall be entitled to the remedies in sections 61 , 62 and 69 .
(8) This section shall not apply where a bundle of electronic communications services or a bundle of such services and terminal equipment within the scope of Article 107 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 20188 establishing the European Electronic Communications Code (Recast) includes elements of an internet access service or a number-based interpersonal communications service.
Remedies where contract also provides for sale of goods etc.
65. (1) This section applies where digital content or a digital service is supplied to a consumer under a contract that provides also for—
(a) the sale of goods, or
(b) the supply of a service.
(2) Where the conditions in subsection (3) are met, the consumer shall have the right—
(a) to terminate the contract, or
(b) to obtain a proportionate reduction in the price payable under the contract.
(3) The conditions referred to in subsection (2) are the following:
(a) if the contract were a contract for the supply of digital content or a digital service only, the consumer would have the right under section 62 to obtain a proportionate reduction in the price or to terminate the contract;
(b) the value of the goods or service to the consumer would be materially reduced in the absence of the digital content or digital service.
(4) In objectively determining for the purposes of subsection (2)(b) whether a reduction in the value of goods or a service is material, all the circumstances shall be taken into account, including in particular—
(a) the nature and purpose of the contract,
(b) the relative value of the different elements of the contract, and
(c) the nature and degree of the inter-dependence of the different elements of the contract.
(5) Where the consumer exercises the right to terminate a contract under subsection (2)—
(a) the consumer shall comply with the obligations in section 66 (3) and (4), and
(b) the trader with whom the consumer has that contract shall comply with the obligations in section 67 .
(6) This section shall not apply where a bundle of electronic communications services or a bundle of such services and terminal equipment within the scope of Article 107 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 20189 establishing the European Electronic Communications Code (Recast) includes elements of an internet access service or a number-based interpersonal communications service.
Obligations of consumer in event of termination of digital content contract or digital service contract
66. (1) Subject to section 65 (4)(a), this section applies where a consumer has the right under section 50 (2), 60 (1) or (2), 62 (2)(b) or 64 (3) to terminate a digital content contract or digital service contract.
(2) The consumer shall exercise the right to terminate a digital content contract or digital service contract by means of a statement to the trader expressing the decision to terminate the contract.
(3) On and after the termination of the digital content contract or digital service contract, the consumer shall not use the digital content or digital service or make it available to any third person.
(4) Where the digital content was supplied on a tangible medium, the consumer shall, on receipt of a request from the trader under section 67 (3), return the tangible medium to the trader without undue delay.
(5) The consumer shall not be liable to pay for any use made of the digital content or digital service in the period prior to the termination of the digital content contract or digital service contract during which the digital content or the digital service was not in conformity with the contract.
(6) If a consumer fails to comply with an obligation imposed by subsection (3) or (4), he or she shall be liable in damages for any loss or damage suffered by the trader as a result of the failure.
(7) The consumer’s liability in damages under subsection (6) shall be without prejudice to any other remedy available under any enactment or rule of law to the trader.
Obligations of trader where digital content contract or digital service contract terminated
67. (1) Subject to subsections (2) and (4), where the consumer exercises the right under section 50 (2), 60 (1) or (2), 62 (2)(b) or 64 (3) to terminate a digital content contract or digital service contract, the trader shall reimburse the consumer in accordance with section 68 for all payments made under the contract.
(2) Where the digital content contract or digital service contract provides for the supply of the digital content or digital service for a period specified in the contract in exchange for the payment of a price and the digital content or digital service was in conformity with the digital content contract or digital service contract for a period prior to the termination of the contract, the trader shall reimburse the consumer only for—
(a) the proportionate part of the price paid corresponding to the period of time during which the digital content or digital service was not in conformity with the contract, and
(b) any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.
(3) Where the consumer terminates a digital content contract or digital service contract under which digital content was supplied on a tangible medium, the trader may request that the consumer return the tangible medium to the trader without undue delay.
(4) Where the trader makes a request under subsection (3)—
(a) the request shall be made within 14 days of the day on which the trader was informed of the consumer’s decision to terminate the contract, and
(b) the trader shall be liable for the cost of returning the tangible medium.
(5) Subject to subsection (6), the trader shall not use any content that was provided or created by the consumer when using the digital content or digital service supplied by the trader under the digital content contract or digital service contract.
(6) The trader may use content such as is referred to in subsection (5) where the content is not personal data and the content—
(a) has no utility outside the context of the digital content or digital service supplied by the trader,
(b) relates only to the consumer’s activity when using the digital content or digital service supplied by the trader,
(c) has been aggregated with other data by the trader and cannot be disaggregated or can be disaggregated only with disproportionate effort, or
(d) has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.
(7) Subject to subsection (8), the trader shall, at the request of the consumer, make available to the consumer any content (other than personal data), which was provided or created by the consumer when using the digital content or digital service supplied by the trader under the digital content contract or digital service contract.
(8) The trader need not make available any content which falls within any of paragraphs (a) to (c) of subsection (6).
(9) The consumer shall be entitled to retrieve the digital content made available to him or her in accordance with subsection (7)—
(a) free of charge,
(b) without hindrance from the trader,
(c) within a reasonable time, and
(d) in a commonly used and machine-readable format.
(10) Without prejudice to subsections (7) and (8), the trader may prevent any further use of the digital content or digital service by the consumer, in particular by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer.
Time limits and means of reimbursement by trader: digital content contract or digital service contract
68. (1) Subject to subsection (2), where the trader is required by section 63 (5), 64 (6)(b)(ii) or 67 (1) to reimburse the consumer, the trader shall carry out the reimbursement—
(a) without undue delay and in any event before the expiry of the period of 14 days beginning on the date on which the trader was informed of the consumer’s decision to exercise the right to a price reduction or to terminate the digital content contract or digital service contract,
(b) using the same means of payment as the consumer used to pay for the digital content or digital service, unless the consumer expressly agrees otherwise and provided that the consumer does not incur any fees as a result of such reimbursement, and
(c) without the imposition of any fee on the consumer in respect of the reimbursement.
(2) Where the reimbursement relates to digital content supplied on a tangible medium, the trader may withhold the reimbursement until the trader has received—
(a) the tangible medium back, or
(b) if the trader so chooses, evidence provided by the consumer of having returned the tangible medium.
(3) If a trader fails to comply with the obligation to reimburse the consumer in accordance with this section, the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of the failure.
General right to withhold payment digital content contract or digital service contract
69. (1) Subject to subsection (2), where the trader fails to comply with the obligation to supply digital content or a digital service that is in conformity with the digital content contract or digital service contract, the consumer shall have the right to withhold payment of any outstanding part of the price until the trader has fulfilled the trader’s obligation to supply digital content or a digital service that is in conformity with the digital content contract or digital service contract.
(2) The part of the price withheld by the consumer under subsection (1) shall be proportionate to the decrease in the value of the digital content or digital service received by the consumer compared with the value that the digital content or digital service would have if it were in conformity with the contract.
(3) The consumer shall exercise the right to withhold payment under subsection (1) by means of a statement to the trader expressing the consumer’s decision to withhold payment until the trader has fulfilled the trader’s obligation to supply digital content or a digital service that is in conformity with the digital content contract or digital service contract.
Effect of termination of digital content contract or digital service contract on ancillary contract
70. (1) Where a consumer terminates a digital content contract or digital service contract in accordance with section 66 , any ancillary contract shall be automatically terminated without any cost to the consumer.
(2) Where a trader is informed by a consumer in accordance with section 66 of the consumer’s decision to terminate a digital content contract or digital service contract, the trader shall inform any other trader with whom the consumer has an ancillary contract of its termination by subsection (1).
(3) Where an ancillary contract is terminated by subsection (1)—
(a) the trader with whom the consumer has that contract shall comply with the obligations in section 67 , and
(b) the consumer shall comply with the obligations in section 66 (3) and (4).
(4) Where any security has been provided under an ancillary contract that is terminated by subsection (1), it is to be treated as never having had effect and any property lodged with the trader or a person other than the trader (a “third party”) solely for the purposes of that security shall be returned immediately by the trader or third party.
(5) In this section, “ancillary contract”, in relation to a digital content contract or digital service contract concluded between a consumer and a trader (in this subsection referred to as the “principal contract”), means another contract concluded between that consumer and that trader, or that consumer and a third party, under which—
(a) the trader, or
(b) in pursuance of arrangements made between the trader and a third party, the third party,
supplies to the consumer goods, digital content, a digital service or a service related to the principal contract.
Exclusion or limitation of liability of trader (Part 3)
71. (1) A term of a digital content contract or a digital service contract, or of any other contract between a consumer and a trader, shall not exclude or restrict the trader’s liability under any of the following provisions:
(a) section 50 (right to supply digital content or digital service);
(b) section 51 (duty to supply digital content or digital service);
(c) section 52 (digital content or digital service to be in conformity with digital content contract or digital service contract);
(d) section 53 (subjective requirements for conformity with digital content contract or digital service contract);
(e) section 54 (objective requirements for conformity with digital content contract or digital service contract);
(f) section 55 (incorrect integration of digital content or digital service);
(g) section 56 (implied terms of digital content contract or digital service contract);
(h) section 57 (third party rights);
(i) section 58 (liability of trader under digital content contract or digital service contract);
(j) section 59 (burden of proof under digital content contract or digital service contract).
(2) A term of a digital content contract or a digital service contract, or of any other contract between a consumer and a trader, which purports to, or has the effect of, excluding or restricting the liability of the trader under any of the provisions specified in subsection (1) shall not be binding on the consumer.
(3) The references in subsections (1) and (2) to excluding or restricting the trader’s liability include a reference to—
(a) excluding or limiting a right or remedy in respect of a liability under a provision specified in subsection (1),
(b) making such a right or remedy, or its enforcement, subject to a restrictive or onerous condition,
(c) allowing a trader to put a person at a disadvantage as a result of pursuing such a right or remedy,
(d) excluding or restricting rules of evidence or procedure, or
(e) preventing an obligation arising or limiting its extent.
(4) An agreement in writing to submit present or future disputes to an ADR procedure within the meaning of the European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015 ( S.I. No. 343 of 2015 ) is not to be regarded as excluding or restricting any liability for the purposes of this section.
(5) A trader who contravenes subsection (1) commits an offence.
Right of redress of trader (Part 3)
72. Where the trader is liable to the consumer because of—
(a) any failure to supply the digital content or digital service under a digital content contract or digital service contract in accordance with section 51 , or
(b) a lack of conformity of the digital content or digital service with the digital content contract or digital service contract,
resulting from an act or omission of a person constituting a previous link in the chain of transactions relating to the digital content contract or digital service contract, the trader shall be entitled to pursue remedies against the person in the chain of transactions liable for the failure or, as the case may be, lack of conformity.
Other remedies
73. (1) The remedies provided for in this Chapter do not affect the right of the consumer to pursue other remedies (without recovering twice for the same loss) where digital content or a digital service is not in conformity with the digital content contract or digital service contract or the trader otherwise fails to comply with the requirements of this Part.
(2) The other remedies referred to in subsection (1) include in particular any of the following remedies that may be available to the consumer:
(a) claiming damages;
(b) relying on the failure of the trader to comply with the requirements of this Part against a claim under the digital content contract or digital service contract by the trader for payment of the price;
(c) seeking to recover money paid to the trader for digital content or a digital service that does not comply with the requirements of this Part;
(d) having a lack of conformity of the digital content or digital service with the digital content contract or digital service contract remedied elsewhere and recovering from the trader all reasonable costs incurred in having the lack of conformity so remedied.
PART 4