The proposed directive for the supply of digital content: is it fit for purpose?

ABSTRACT

In December 2015, the European Commission proposed a new Directive for the Supply of Digital Content. This Directive was presented along with a second proposed Directive on Online and Distant Sale of Goods. These proposed Directives form part of the European Union Digital Single Market Strategy. This paper critically examines the Directive for the Supply of Digital Content to establish whether it fits the purposes for which it is drafted and whether it fits the goals of the Digital Single Market Strategy.

It is submitted that although the Directive is presented as part of the Digital Single Market Strategy and as an instrument to fill a gap in the Consumer Acquis, it is mainly concerned with harmonising contract law and it is driven by the Commission’s previous failed attempts to harmonise Contract law. The paper also highlights that in its current form due to some of its requirements imposed on businesses the proposed Directive may lead to unintended consequences for consumers. The paper argues that the Directive and some of its provisions needs to be revisited.

KEYWORDS:

• Digital content
• harmonisation of contract law
• Digital Single Market Strategy

Disclosure statement

No potential conflict of interest was reported by the authors.

ORCID

Johanna Hoekstra http://orcid.org/0000-0002-7071-1188

Aysem Diker-Vanberg http://orcid.org/0000-0002-0614-1707

Notes

1. An amended proposal from the EC in October 2017 means that the Online Sales Directive would be applicable to all sales, including offline sales.

2. This article was written before the future relationship between the European Union and the United Kingdom received any clarity. It can be assumed that the proposed Directives will not be transposed as the UK will have no obligation to do so by the time the legislation passes. However, for now no real assumptions can be made on this subject.

3. Throughout this article the term ‘supplier’ has been used interchangeably with the terms ‘provider’ and 'rader' to refer to providers of digital content and services.

4. Section 1, dealing with performance, non-performance and remedies, was published in 1995. A revised version of section 1 alongside section 2 was published in 1998. Section 3 deals with issues of assignment, assumption, statutes of limitation, procedural issues, capitalisation of interest and the effects of illegality and was published in 2003. Section 3 is published separately whereas sections 1 and 2 are integrated into one document.

5. http://www.acquis-group.org/, accessed 6 November 2018.

6. For instance in 1994 (see: O.J. C 205 February 4, 1994, at 518 (Resolution A3-0329/94 on the harmonisation of certain sectors of the private law of Member States)).

7. For some news articles on this issue see: Common European Sales Law faces rocky reception. http://www.euractiv.com/sections/innovation-enterprise/common-european-sales-law-faces-rocky-reception-301090, accessed 6 November 2018; The Common European Sales Law – advantage or trap for consumers? http://www.consumatoridirittimercato.it/diritti-e-giustizia/the-common-european-sales-law-advantage-or-trap-for-consumers/, accessed 6 November 2018; EU sales law is against the interest of consumers and online traders. http://www.euractiv.com/health/meps-opportunity-opt-optional-co-analysis-533757, accessed 6 November 2018; ICC Position on the EC Proposal for Common European Sales Law: http://www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2012/ICC-Position-on-the-EC-proposal-for-a-Common-European-Sales-Law/, accessed 6 November 2018.

8. See Resolve your Consumer Complaint’s website. https://ec.europa.eu/info/live-work-travel-eu/consumers/resolve-your-consumer-complaint_en, accessed 6 November 2018.

9. See Online Dispute Resolution website. https://ec.europa.eu/consumers/odr/main/?event=main.home.show. accessed 6 November 2018.