In addition to goods and services, consumer protection also covers digital content and services. The Consumer Protection Act contains provisions on what should be done if the delivery of digital content or services is delayed or defective, or they are modified. The Act also applies to contracts under which consumers, instead of paying money, pay by handing over their personal data, for example for marketing purposes.
Digital content refers to all types of data produced and delivered in digital format. A digital service means a service that allows the consumer to generate, use or share data in digital format.
For example, the following are within the scope of the Consumer Protection Act:
- computer software and applications
- video and audio files
- digital games
- electronic books and magazines
- streaming services
- cloud services
- social media services
- instant messaging services, such as WhatsApp or Facebook Messenger.
The Act does not apply to actual communication services, including telephone and Internet subscriptions. Read more: Defect in a connection.
The Act applies to contracts concluded on 1 January 2022 or later.
Digital content or service must be delivered without delay
Unless otherwise agreed, the digital content or service must be delivered to the consumer without undue delay once the contract has been concluded. The content or service has been delivered when it is technically available to the consumer.
In case of a delay, the consumer has the right to
- withhold payment until the contract has been fulfilled
- demand that the contract is fulfilled
- cancel the contract if it is not fulfilled after they have demanded its fulfilment
- receive compensation for losses caused by the delay.
When does digital content have a defect?
The trader is responsible for ensuring that the digital content or service is as agreed and meets general requirements in terms of its quality, functionality and compatibility.
The features of the digital content must correspond to those that digital content or services of the same type generally have and which the consumer can normally expect. In this, particular attention is paid to the nature of the digital content and the information provided on it in marketing and otherwise before the sale.
The necessary accessories and instructions that the consumer can reasonably expect to receive must be delivered with the digital content or service.
The consumer must receive the latest available version of the digital content and service as a default.
An exception to the general requirements may only be made if
- the consumer has been explicitly informed of a deviation at the time the contract was concluded, and
- the consumer has specifically and explicitly accepted the deviation.
Right to compensation for a defect
If the digital content or service has a defect for which the company is liable, the consumer may demand
- rectification of the defect, or
- a price reduction, or
- cancellation of the contract, unless the defect is minor, and
- compensation for losses.
The defect must be rectified within a reasonable time and ensuring that this does not result in costs or harm for the consumer.
A price reduction cannot be granted for digital content delivered in return for personal data, but the consumer also has the right to cancel the contract in case of a minor defect.
When the contract is cancelled, the trader has the right to block the consumer’s access to the digital content or service, for example by closing the consumer’s user account. With certain exceptions, the trader must not use digital content or service handed over or created by the consumer and, at the request of the consumer, make such content available to the consumer.
The compensation for losses also includes personal injuries. Such injuries may be caused by using various types of digital content or services related to health, physical activity and well-being.
The trader must deliver updates
The updates on which the parties have specifically agreed must be delivered for digital content or services. The trader must additionally ensure that the consumer is informed about any necessary information security and other updates and that these updates are delivered to the consumer for a sufficient period of time.
‘The consumer is free to decide whether to install the supplied updates or not. If the consumer decides not to install the updates, however, this may affect the trader’s liability.
Modifying digital content or services
The trader has an obligation to make essential modifications in order to ensure that the digital content or service remains free of defects.
A trader may only make non-essential modifications if:
- the contract allows such modifications and contains provisions on specific justified reasons for them
- the modification does not result in additional costs for the consumer, and
- the consumer is informed of the modification clearly and comprehensibly
In addition, the consumer must be informed of the possibility of cancelling the contract or keeping the digital content or service unmodified.
The consumer may cancel the contract if the modification has a negative impact on their possibilities of using the digital content or service. This right does not apply if the negative impact is minor.