For a long time there has been talk about the legal changes that await entrepreneurs in connection with offering goods or services to consumers. The mysterious slogan “Omnibus” appeared in the background. Currently, we have already passed laws modifying the consumer law, and the new laws will come into force as early as January 1, 2023. The changes affect both stationary businesses and those offering products or services online.
There are quite a lot of changes, so in the following material, I first take those that are relevant to the delivery of digital content or services. I will provide you with knowledge in this area in portions, and below is Part I.
First, a brief formal introduction. The “Omnibus” is one of three EU directives, the adoption of which by the EU legislature forced the implementation of changes in national law. In addition to the Omnibus Directive, Polish laws still implement the so-called Goods Directive and the so-called Digital Directive.
A directive is a legal act adopted at the level of the European Union, which does not apply directly to the legal order of a member state, but defines the main directions of changes to be adopted in a given country and requires implementation in local law – that is, in our case, the adoption of the relevant law.
A new definition – digital services
In addition to the existing definition of digital content, the concept of digital service has been introduced into the Consumer Protection Law.
Digital service – a service that allows the consumer to:
- generation, processing, storage or access to data in digital form,
- sharing of data in digital form that has been transmitted or produced by the consumer or other users of this service,
- other forms of interaction by means of data in digital form.
What in practice is a digital service? Cloud storage, email services, online video games, apps, social media platforms, etc.
As a reminder, digital content is data produced and delivered in digital form, so primarily ebooks of all kinds.
In addition, a definition of goods with digital elements was introduced into the Law on Consumer Rights. These are goods (movable things) that contain or are connected to digital content or a digital service in such a way that the absence of digital content or a digital service would prevent them from functioning properly.
Obligations of an entrepreneur providing digital services or content
A pretty long chapter has been added to the Law on Consumer Rights to regulate contracts for the provision of digital content or digital service. Here’s what you need to know first and foremost:
- Digital content (unless delivered via a tangible medium) or digital service is to be delivered to the consumer immediately after the conclusion of the contract, unless the parties have agreed otherwise. Failure to fulfill the obligation to promptly deliver the service or content (including within an additional period agreed by the parties), entitles the consumer to withdraw from the contract.
- The digital content or digital service is to comply with the contract. In particular, they must remain in compliance with the contract:
- description, type, quantity, quality, completeness, functionality, compatibility, interoperability, and availability of technical support and updates;
- suitability for the specific purpose for which they are needed by the consumer, which the consumer has notified the trader at the latest at the time of the conclusion of the contract and which the trader has accepted,
and, in addition, the digital content or service must:
- be suitable for the purposes for which digital content or a digital service of this type is normally used, taking into account applicable laws, technical standards or good practices;
- occur in such quantity and have such features, including functionality, compatibility, accessibility, continuity and security, as are typical for digital content or digital service of this type and which the consumer may reasonably expect, taking into account the nature of the digital content or digital service and the public assurances made by the trader, its legal predecessors or persons acting on its behalf, in particular in advertising or on the label, unless the trader demonstrates that: a) they did not know about the public assurance in question and, judging reasonably, could not have known about it; b) prior to the conclusion of the contract, the public assurance was rectified in the terms and form in which the public assurance was given, or in a comparable manner; c) public assurance did not affect the consumer’s decision to enter into the contract;
- be supplied with accessories and instructions that the consumer can reasonably expect to receive;
- be in accordance with the trial version or announcement that was made available to the consumer by the trader before the conclusion of the contract.
Bearing in mind the above-mentioned elements affecting the compliance of the digital content or digital service with the contract, it is therefore important for you to fulfill your information obligations to the consumer, that is, to provide all information regarding the digital content or digital service.
You must inform the consumer of updates, including security features, necessary to keep the digital content or digital service in compliance with the contract and provide them to the consumer for the time of:
- the delivery of digital content or digital service specified in the contract under which delivery is made on a continuous basis, or
- reasonably expected by the consumer, taking into account the type of digital content or digital service and the purpose for which it is used, as well as the circumstances and nature of the contract, if the contract provides for the delivery of digital content or digital service at one time or in parts.
The consumer should also be informed of the consequences of not installing the update.
You must provide the digital content or digital service in the latest version available at the time of the agreement, unless otherwise agreed by the parties.
Consumer rights if the content or digital service does not conform to the contract
If the digital content or digital service does not comply with the contract, the consumer has the right to:
- demand to bring them into conformity with the contract – the entrepreneur does not have to comply with this demand if bringing the digital content or digital service into conformity with the contract is impossible or would require excessive costs for the entrepreneur,
- make a statement on price reduction or withdrawal from the contract, if:
- to bring the digital content or digital service into compliance with the contract is impossible or requires excessive costs,
- the entrepreneur failed to bring the digital content or digital service into compliance with the contract,
- the non-conformity of the digital content or digital service with the contract continues to exist even though the trader has tried to bring the digital content or digital service into conformity with the contract,
- the lack of conformity of the digital content or digital service with the contract is so significant that it justifies either a price reduction or cancellation of the contract without first resorting to the measure of bringing it into conformity with the contract,
- it is clear from the trader’s statement or circumstances that he will not bring the digital content or digital service into conformity with the contract within a reasonable time or without undue inconvenience to the consumer.
Digital content and the loss of the right of withdrawal
If you deliver ebooks to consumers, you surely know that consumers lost their right to withdraw from the contract for the delivery of such content if they agreed to receive the digital content before the end of the withdrawal period and accepted that they would thus lose their right to cancel the contract. Due to the changes, which will come into effect on January 1, 2023, the content of the consumer’s statement will need to be amended. A statement will have to be added to it about the consumer’s acceptance of the fact that he will lose his right to withdraw from the contract after the entrepreneur’s performance. In addition, it will be necessary to confirm to the consumer on a durable medium that he has made the above statement to the entrepreneur (e.g., confirmation of this fact in an email).
Changes to regulations and information about digital content and services
As you can probably already see from the above information, you should prepare for the upcoming changes, including adjusting your terms and conditions for providing digital content or services, as well as updating your customer statements and your own information obligations. In a week’s time, I will provide you with further important information on the upcoming changes. If you have any questions in the meantime about the need to adapt your business to the new regulations, I invite you to contact me.
advocate Agnieszka Rapcewicz