Draft implementation of Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services
In view of the upcoming implementation deadline for Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services (the “Directive“), we hve prepared a brief summary of Poland’s draft implementation legislation (the “Draft”).
EU Member States are required to adopt legislation implementing the Directive by 1 July 2021, with effect from 1 January 2022. The implementation act has not yet entered in force.
The Draft aims to implement the Directive. It amends the Act of 30 May 2004 on consumer rights (Dz. U. of 2020, item 287) and the Act of 23 April 1964. – Civil Code (Dz.U.2020.0.1740).
The Directive lays down requirements for contracts to supply:
- digital content,
- digital services.
Digital content and digital services – what are they?
Digital content is data produced and delivered in digital form.
It can be computer programs, e-books, computer games or music files.
Digital services are services that allow consumers to produce, process, store or access data in a digital form, or to share digital data which has been transmitted or created by the consumer or other users of that service or other forms of interaction which use such data.
Such services therefore include, for example, video and audio content, file hosting or text editing or games in cloud computing and social media, but also, for example, access to the functionalities of accounts in online shops.
New rules – what do they cover?
The Draft sets out the requirements for contracts between entrepreneurs and consumers for the supply of digital content or services.
These are mainly requirements concerning:
- the conformity of digital content or digital service with the contract;
- remedies if the digital content or services do not confirm with the contract; remedies for non-delivery of digital content or service and the ways of using these remedies;
- amendment of the digital content or services.
Generally, the new rules will apply to contracts for remuneration, with one exception. The regulations also apply to contracts providing digital content in exchange for a natural person supplying his/her personal data.
New obligations for entrepreneurs
The Draft imposes new obligations on entrepreneurs, the most important of which include:
- obligation to ensure compliance of digital content or digital services with an agreement – including compliance with such elements as the description, type, quantity and completeness of the digital content or digital service and suitability for the specific purpose for which they are needed by the consumer, of which the entrepreneur was aware when concluding the contract. They also include, for example, conformity with the consumer’s reasonable expectations concerning updates, functionality, compatibility, interoperability and technical support;
- the obligation to inform and provide the consumer with updates, including those relating to security, necessary to maintain the digital content or service in conformity with the contract;
- an obligation to supply digital content or a digital service immediately after the conclusion of the contract (the parties may specify a different time limit for delivery);
- an obligation to supply digital content or a digital service in the latest available version at the time the contract is concluded (the parties may agree otherwise);
- in the event of non-conformity with the contract, the obligation to bring the digital content or digital service into conformity with the contract free of charge and within a reasonable time and without excessive inconvenience to the consumer, taking into account its nature and purpose, for which it is used;
- the possibility to change digital content or service which is not necessary to preserve conformity with the contract, but only if the contract so provides and only for valid reasons specified in that agreement;
- information obligations, particularly regarding amendment of digital content or digital service.
The Draft grants consumers a number of rights, the most important of which are:
- a request to supply digital content or services and, if this is not done properly within a specified time limit, a right to withdraw from the agreement (in certain situations, specified in the Draft, a consumer may withdraw from the contract immediately without being required to make a prior request for delivery from the entrepreneur);
- require the digital content or service to be brought into conformity with the contract;
- if the non-conformity is not remedies, a right to withdraw from the contract or to claim a reduction in price;
- after withdrawal, to require the content created or provided by the consumer in the course of the use of digital content or digital service to be made available, other than personal data (the Draft contains a catalogue of content which the consumer may not request).
In connection with the Draft, we encourage you to assess the current practices within your business regarding digital content and services and to adjust them to ensure compliance with the new requirements in the Draft.
In particular, we recommend that you:
1. assess whether the products and services you offer are digital content or digital services;
2. change the terms and conditions of supply to comply with the requirements in the Draft;
3. change the contractual models of software made available to consumers (e.g., change the End User License Agreement, EULA).
The changes should be implemented in the Polish legal system with effect from 1 January 2022. It is advisable to ensure that a full review of your business’s documentation of digital content and services is completed by that time.