The Directive (EU) 2019/770 establishes common rules for contracts between traders and consumers regarding the supply of digital content and digital services. However, it does not apply to communication services such as telephone and internet subscriptions. The provisions of this directive have been in effect since January 1, 2022.

Directive ensures consumer rights and trader obligations regarding digital content and services, enhancing clarity and consumer protection in digital transactions.

Scope of digital content and services under the Directive

The Directive defines digital content and services as including, but not limited to:

• computer programs
• apps (for example, a game app from the app store)
• video files
• audio files
• digital games
• electronic books or other electronic publications
• digital services that enable the creation, processing, use or storage of data in digital form, including online application services (SaaS), such as the sharing of video and sound recording and other types of online storage
• word processing options or games available in the cloud environment
• social media
• instant messaging services (e.g. WhatsApp, Facebook Messenger) and web-based email services
• digital television services.

Methods of delivering digital content and services

Digital content and services can be delivered through various methods, including:

• direct transfer on a material medium
• download to the consumer’s device
• online streaming, providing access to recorded digital content or social media.

Additionally, digital content or services may be distributed via physical storage devices, such as:

• DVDs and CDs
• USB sticks and SD cards
• other physical media, provided they serve solely as carriers for digital content.

Delivery deadline for digital content and services

Unless otherwise agreed, the vendor must supply the digital content or service without delay after the contract is concluded. The vendor’s obligation is fulfilled when:

• the digital content is available for access or download
• the digital service is accessible on the physical or virtual system chosen by the consumer.

Errors in digital content and services

The vendor is responsible for ensuring that the digital content or service meets the agreed terms. There is an error in the digital content if:

• it does not match the agreed description, quantity, quality, functionality, compatibility, or interoperability
• it doesn’t fit for the specific purpose the consumer required, provided the trader was informed and approved this purpose before the contract was concluded
• it lacks necessary accessories, instructions, installation guides, or customer support as specified in the contract
• it has not been updated as required by the agreement.

Additionally, digital content or services must:

• fit for their general purpose, similar to comparable digital products
• meet reasonable consumer expectations regarding functionality, compatibility, accessibility, continuity, and security
• include accessories and instructions that a consumer would reasonably expect
• match trial versions or previews presented before the contract was signed.

Consumer rights to updates and service functionality

The vendor must inform consumers about updates and security patches and ensure their delivery within the agreed timeframe or a reasonable period.

If the consumer fails to install updates after being properly informed of their availability and consequences, the vendor is not liable for resulting errors.

For long-term or continuous digital services, the content must remain compliant throughout the contract period.

A deviation from standard requirements is not considered a defect if the consumer was clearly informed and explicitly accepted it at the time of contract conclusion.

Unless otherwise agreed, the digital content or service must be provided in its latest available version at the time of contract signing.

Vendor’s liability for errors in digital content or service

The vendor is liable for any errors in the digital content or service for at least two years from the date of delivery. If the delivery takes longer, the vendor remains liable for any errors that occur during the period in which the digital content or service is to be supplied under the contract.

It’s important to note the impact on the burden of proof:

• if an error occurs within one year of delivery, it is presumed that the error existed at the time of delivery, unless the vendor can prove otherwise
• the vendor may demonstrate that the issue was caused by incompatibility between the consumer’s digital environment and the technical requirements of the digital content or service. To avoid liability, the vendor must also show that these requirements were clearly communicated to the consumer before the contract was finalized.

Additionally, the consumer must cooperate with the vendor to determine whether the error is due to the consumer’s digital environment. In such cases, the burden of proof shifts to the consumer.

Rights when the vendor fails to deliver digital content or service

If the vendor does not deliver the digital content or service as agreed, the consumer should first request that the vendor fulfill the delivery. If the vendor fails to act promptly or within a mutually agreed extension, the consumer has the right to cancel the contract.

The consumer is also entitled to immediately terminate the contract if it becomes clear – either through the vendor’s actions or the surrounding circumstances – that the vendor does not intend to deliver the digital content or service, or is unable to meet an essential deadline.

Rights Regarding Defects in Digital Content or Service

If the digital content or service has a defect for which the vendor is responsible, the consumer may request that the defect be fixed. The vendor must address the issue within a reasonable timeframe, ensuring that it does not result in additional costs or significant inconvenience for the consumer.

If fixing the defect is impossible or would incur unreasonable costs, the vendor is not required to correct the defect. However, the vendor must take alternative corrective actions. These may include offering a proportionate discount if the digital content or service remains usable despite the defect. For ongoing services or content, the discount would only apply for the period when the digital content or service failed to meet the agreed standards. The vendor must provide the discount promptly, no later than 14 days after the consumer requests it.

A defect can be considered resolved by canceling the contract if:

• fixing the defect to meet the terms of the contract is impossible or unreasonable
• the vendor has failed to fix the defect, or their attempts to do so have been unsuccessful
• the defect is serious enough to justify terminating the contract
• the vendor cannot fix the defect within a reasonable time frame or without causing significant harm to the consumer.

However, the consumer can only terminate the contract if the defect is not considered minor. In such cases, the vendor has the responsibility to prove that the defect is minor.

Vendor and consumer responsibilities in case of contract termination

If the contract is terminated, the vendor must refund all payments made by the consumer under the contract, including any advance payments, for the period when the digital content or service was defective. The vendor must issue the refund promptly, no later than 14 days after the consumer has exercised their right to terminate the contract.

Upon termination, the vendor has the right to block the consumer’s access to the digital content or service, which may include closing the consumer’s user account. In most cases, the vendor must not use any digital content or service created or provided by the consumer. If requested by the consumer, the vendor must make such content available to the consumer.

After the contract is terminated, the consumer must stop using the digital content or service and must not share it with third parties. If the digital content was supplied on a physical medium, the consumer must return the medium to the vendor at the vendor’s expense without undue delay, upon request.

Refunds will be issued using the same payment method originally used by the consumer, unless otherwise agreed, and provided no additional costs are incurred.

Vendor’s right to modify digital content or service

The vendor is required to make essential modifications to ensure that the digital content or service remains free of defects.

However, modifications beyond what is necessary can only be made if:

• the contract allows for such changes and specifies valid reasons for them.
• the modification does not result in additional costs for the consumer
• the consumer is informed of the modification in a clear and understandable manner.
• the consumer is notified of their right to either cancel the contract or keep the digital content or service unchanged.

If a modification negatively impacts the consumer’s ability to use the digital content or service, the consumer has the right to cancel the contract. This right does not apply if the negative impact is considered minor. The consumer can terminate the contract at no charge within 30 days of being informed of the modification or after the modification has been made, whichever is later.