Digital content services for consumers
Background
In 2004, the Commission launched the review of the
European consumer protection rules covering eight directives with a
view to simplifying, improving and, thus, modernising the existing
regulatory framework. During the preparation of the proposal for a
Directive on Consumer Right, the Commission considered extending
the scope of the existing consumer protection rules (in particular
Directive 1999/44/EC on consumer goods and associated guarantees)
to cover agreements under which consumers get access to digital
content.
Given the complexity of this issue, and serious concerns voiced
by industry, this Proposal for a new directive from October 2008
does not contain rules in this regard. However, the Commission made
it clear that it has not abandoned this idea of regulating
consumers' access to digital content. To this end, in the
summer of 2009 the Commission has commissioned a
study to determine the scope of the problem and the possible
consumer detriment caused by digital content not being sufficiently
covered by the existing consumer protection
legislation.
Scope of digital services to be covered by
the study
As far as the definition is concerned, the study covers both (i)
digital content services that the consumer can access online and
(ii) other services which the consumer can receive online.
"Digital content services" must include at least
software, music, movies, ring tones and games. The means of access
should include downloading, streaming, provision of digital content
on a physical medium, such as CD or DVD and any other relevant
method. The second category of "other on-line services"
must include at least website hosting, e-mail services and
"software-as-a-service".
Both definition should also include similar digital content
services or other on-line services where there is recognisable
market for digital services today or where there are signs of a
market under development irrespective of the way the consumer
accesses it. In addition, this working definition should cover all
products listed above irrespective of whether the consumer is
required to pay for these products or receives them in exchange of
for example his/her personal data.
Identification of
main consumer problems in the study
By launching this study, the Commission intends to investigate
and define at least the following issues perceived to be the main
consumer problems with digital services: (i) digital services not
functioning properly; (ii) transparency and fairness of contractual
terms and conditions; (iii) information provided to consumer on the
use of the digital service and the associated costs; (iv)
information provided to consumers on their rights; (v) problems
with the functioning of the service or unexpected or unknown
effects; (vi) liability for damages caused by digital content
(including software); (vii) problems with/accessibility to customer
service/after sale services; (viii) problems with access to the
existing redress mechanisms regarding unsatisfactory digital
services; (ix) problems with the cross-border access to these
digital services, irrespective of where consumers are located in
the EU.
Conclusion - watch this space!
Since the launch of the review of the European consumer
protection rules in 2004, the Commission has consistently
maintained that something needs to be done in the field of
consumers' access to digital services. While earlier attempts
to propose legislation in this area have failed as this issue
proved to be highly controversial and fiercely opposed by industry,
it seems that the Commission is still determined to make its case
for regulatory action. Even though this study is, in terms of the
legislative process, not more than a first step in that direction,
it may provide useful insights and a glimpse of things to come.
Keep on watching this space!