The European Parliament is ready to begin negotiations with the Council on the rules for digital content sales contracts. On 21 November, a large majority at the internal market (IMCO) and judicial affairs (JURI) committees adopted their respective positions on this draft directive. Notwithstanding any surprises, the inter-institutional negotiations will now begin on 5 December.
It should be pointed out that the draft directive presented at the beginning of 2016 at the same time as a draft directive on goods sold online, seeks to protect consumers in the event of receiving defective digital content or services (see EUROPE 11468). It will apply to both digital content (music, films, apps, games and computer programs) and services (cloud computing services and social media platforms). This will be done irrespective of the support used to deliver these goods or services.
Maximum targeted harmonisation
The European Parliament supports the Commission approach in favour of maximum targeted harmonisation. This means that the member states have to keep close to the provisions in the directive unless the latter authorises otherwise. The text includes, for example, strict provisions on the duration of the legal guarantee (two years) and the reversal of proof (two years for digital content and one year for embedded content, namely, the software integrated into goods, such as a “smart” fridge. Nonetheless, the member states will have a certain room for manoeuvre with regard to the legal guarantee relating to embedded content, the right in the short term to cancel a sale and provisions on hidden defects.
Parliament’s text also establishes a hierarchy of remedies in the event of non-compliance. Therefore, a consumer who has suffered possible damages will first of all request that the problem in question be settled. If they do not observe any improvement, they will be able to call for a reduction in the price of the purchase or rescind the contract “in the event of a non-minor defect”. With regard to long-term contracts (longer than 12 months), the Parliament text stipulates that traders can demand “proportionate compensation” to the benefits granted to the consumer under the terms of the duration of the contract.
For the remainder, Parliament’s text covers the contracts that include a payment or an exchange of personal data (for example, registration in an online service or with a social media). It also extends the scope of application of the draft directive to applications linked to the Internet of things (IoT) and instant messaging services that do not fall within the European Communications Code currently being discussed. (Original version in French by Sophie Petitjean)