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Have you purchased a video game online or do you have a subscription to a video on demand platform? Have you noticed a defect? You can invoke the legal guarantee.
The same guarantee rules as for goods now apply to digital content and services. This extension of the guarantee of conformity further strengthens the rights of consumers.
These rules are contained in Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services. The rules apply in all EU Member States and have been transposed in Belgium in the Civil Code (Art. 1701/1 et seq.).
These new rules apply to the provision of digital content or services on or after 1 June 2022, i.e. to open-ended or fixed-term contracts concluded before that date, with the exception of Articles 1701/16 and 1701/17 of the Civil Code, which apply only to contracts concluded after that date.
What Are Digital Content and Services?
Digital content covers, among other things:
- computer programmes
- video files
- audio files
- music files
- digital games
- other electronic publications
Digital services include:
- film and music streaming services
- cloud storage services (cloud computing)
- social media
What Digital Content and Services are Covered by the Legal Guarantee?
The legal guarantee covers:
- digital content and services for which the consumer pays a price;
- digital content and services provided in exchange for personal data;
- digital content provided on a physical medium (such as DVDs, CDs, USB sticks).
The purchase of goods with digital components (such as a smartphone, computer, smart TV, etc.) is still subject to the legal guarantee rules for goods, including goods that incorporate or are interconnected with digital content or a digital service.
What Are the Conformity Obligations of the Digital Content or Service Provider?
The supplier is obliged to provide the consumer with digital content and services in conformity with the contract.
Digital content or services must meet certain conformity requirements, as is the case for goods. These are both subjective conformity requirements (as set out in the contract) and objective conformity requirements.
Digital content or service must:
- match the description, quantity and quality, and have the functionality, compatibility, interoperability and other characteristics as specified in the contract;
- be suited to the specific purpose sought by the consumer;
- be supplied with all accessories, including installation instructions and customer support, as specified in the contract;
- be updated as specified in the contract;
- be suited to the purposes normally expected of digital content or digital services of the same kind;
- match the quantity and have the quality and performance characteristics, including functionality, compatibility, accessibility, continuity and safety, that are normal for digital content or digital services of the same kind and that the consumer may reasonably expect, having regard to the nature of the digital content or digital service and in relation to any public statements made by or on behalf of the trader or other persons further up the transaction chain, in particular in advertising or on the label;
- where applicable, be supplied with all the accessories and instructions that the consumer may reasonably expect to receive;
- be in conformity with any trial version or preview of the digital content or service made available by the trader before the contract was concluded.
The trader must:
- inform the consumer of any updates, including security updates, that are necessary to maintain the conformity of the digital content or service;
- provide such updates during the period that the consumer may reasonably expect, or during the period provided for in the purchase agreement, which may result in continuous provision. The consumer is then responsible for installing these updates as indicated. If this is not the case, the vendor is not responsible for any resulting lack of conformity.
Any defect that results from the incorrect integration of the digital content or digital service into the consumer's digital environment will be deemed to be a lack of conformity of the digital content or service, regardless of whether the integration was performed by the trader or by the consumer based on faulty instructions.
What Is the Guarantee Period for Digital Content and Services?
The guarantee period is in principle two years from the time of delivery of the digital content and services.
This period applies to digital content and services acquired through a single supply transaction (or series of individual supply transactions), such as e-books, online film purchases or music downloads. However, the guarantee may be extended in certain cases, in particular where the contract provides for the continuous supply of digital content and services over a period of time (e.g. subscription to streaming or cloud services for a period of several months or years, membership of a social media platform for an indefinite period of time).
Burden of Proof for a Single Supply Transaction (or Series of Individual Supply Transactions)
The duration of the presumption of existence of the defect is one year from the provision of the digital content or service. During the first year, the lack of conformity is presumed, and it is the trader's responsibility to prove that the defect appeared as a result of an error or specific use by the consumer. After one year, the trader may ask the consumer to prove that the defect already existed at the time of delivery.
This applies to e-books, films and downloadable music files.
The Burden of Proof in the Event of Continuous Supply Over a Period
The trader is liable for any lack of conformity that occurs or appears during the period in which the digital content or digital service is to be provided under the contract.
Troughout the entire contractual period, the burden of proof for the conformity of the digital content or service lies with the trader.
This applies to streaming or cloud services for a fixed period of time (several months or years) or membership of a social media platform for an indefinite period.
Suspension and Termination of the Guarantee in the Event of Non-Conformity
Whether it involves a single supply or a continuous supply of digital content and services over a period of time, the guarantee is suspended for the time needed to bring the digital content or service into conformity or in the event of negotiations between the trader and the consumer to find an amicable settlement.
What Recourse Does the Consumer Have in the Event of a Lack of Conformity?
First, the digital content or service must of course be delivered. If this is not the case, the consumer must first put the trader on notice. If the trader does not respond favourably, the consumer can ask for the termination of the contract.
Where a lack of conformity is found, the consumer has the right to have the digital content or service brought into conformity, unless this is impossible or involves disproportionate costs for the trader. This must be done within a reasonable time after notification, without cost and without significant inconvenience to the consumer.
Where this is not possible, the consumer may demand:
- a price reduction or the termination of the contract; it must be proportional to the diminished value or the period of non-conformant provision of the digital content or service;
- the termination of the contract: only if the lack of conformity is not minor.
What About Updates to Digital Content and Services?
The digital content or service often undergoes changes after the conclusion of the contract (some updates and upgrades). These updates are now strictly regulated by law.
When the contract states that the digital content or digital service is provided or is made available to the consumer for a certain period of time, the trader may change the digital content or digital service beyond what is necessary to maintain the conformity of the digital content or digital service only if the following conditions are met:
- the contract authorises such a change and provides a valid reason for it;
- the update bears no additional cost to the consumer;
- the consumer is informed of the update in a clear and comprehensible way;
- if the update has more than a minor adverse effect on access to or use of the digital content or service, the consumer must be informed, reasonably in advance and by a durable medium, of the features and timing of the change and of their right to terminate the contract or retain the digital content or service without the update.