Supply of digital content and services - new legal concepts marred with old practical problems

Abstract

The world is undergoing a digitalization. Work, entertainment, education, even procurement of basic necessities is more and more done online. Some even speak of digital revolution. As of 11 June 2019, Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services (“DCD”) and Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods (“SGD”) have entered into force and will be effective from 1^st of January 2022. These directives are a key legislative component of EUs’ Digital single market policy, and can be seen as a culmination of years-long legislative and political initiative, that aims to regulate the ever-evolving digital market.

Much has already been written by both EU committees and independent legal experts about the DCD, its’ issues, and possible impact of the DCD on national legal systems. This article aims to showcase the whole initiative of regulating the digital market with regards to consumer rights, describe the core issues of the DCD that have been identified since its’ conception, and present a compilation of how some of the national legislators, namely the legislators of Austria, Czechia, Poland and Spain, have dealt with said issues during the arduous task of transposition.

The article concludes that the DCD is but one of many acts of the long and arduous legislative task of regulating the digital market in both the Digital single market policy and the “New deal for consumers”. The directive itself is not without its’ issues: its provisions are often too broad and general to constitute an actual improvement for the consumer. This is especially the case regarding the standard of quality for the supply of digital content and digital services. The DCD also omits important to classify of the contact for the supply of digital content as a specific contract type, and glosses over whether consumers’ counter-performance in allowing access to their personal data is on par with monetary counter-performance. Generally the issues of the DCD were not addressed or rectified by the examined national transpositions. However, in some specific cases, the national legislators have actually improved the situation. The new legislation will not solve the problem of binding the digital market in equitable legal rules. It does however serve as a stepping stone that includes some new legal concepts, that are necessary to comprehensively and properly regulate the digital market.