Digital Content and Digital Service Directive

Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services

Background and Scope

The Digital Content and Digital Service Directive addresses a fundamental challenge: businesses face additional costs from differences in national consumer contract law rules when offering cross-border digital services, while consumers lack confidence in cross-border online purchases due to uncertainty about contractual rights. The framework aims to fully harmonize certain key rules concerning contracts for digital content and services to achieve a genuine digital single market.

The scope is deliberately broad and technology-neutral, covering computer programs, applications, video files, audio files, music files, digital games, e-books, and digital services for data creation, processing or storage. Importantly, the Directive applies not only to traditional payment contracts but also to contracts where consumers provide personal data instead of paying a price.

Key exclusions include healthcare services, financial services, and free and open-source software where no price is paid, and personal data are only processed for security or compatibility improvements. The Directive complements rather than replaces existing consumer protection frameworks, working alongside other Union laws on telecommunications, e-commerce, and data protection.

Key Obligations

• Supply and Conformity Requirements: Traders must supply digital content or services without undue delay after contract conclusion. The framework establishes both subjective conformity requirements and objective requirements.
• Update Obligations: The requirement for traders to inform consumers of and supply necessary updates, including security updates, to maintain conformity throughout continuous supply contracts or for a reasonable period for single supply contracts. However, traders are not liable for non-conformity resulting solely from consumers’ failure to install properly notified updates.
• Liability Framework: The Directive establishes clear liability periods – a minimum two-year period for single or series supply, and liability throughout the supply period for continuous supply. The burden of proof lies with traders for lack of conformity which becomes apparent within one year from the time when the digital content or digital service was supplied.
• Consumer Remedies: For non-supply, consumers can demand supply and terminate if traders fail. For lack of conformity, consumers are entitled to have content or services brought into conformity as the primary remedy, proportionate price reduction, or contract termination if the lack of conformity is not minor.
• Termination Consequences: Upon termination, traders must reimburse all sums paid with proportionate adjustments for continuous contracts, comply with GDPR obligations regarding personal data, and generally refrain from using consumer-created content with specific exceptions. Importantly, traders must make consumer-created content available upon request in machine-readable format.
• Modification Rights: For continuous supply contracts, traders may modify digital content or services beyond conformity maintenance if the contract allows, modification is free, consumers are informed, and for negative impacts, consumers receive a 30-day termination right.