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This article analyses the core issues of the new digital content directive: the conformity criteria, liability of the trader and the remedies of the consumer for lack of conformity. The authors assess the directive as a welcome step in raising consumer protection on the Digital Single Market, especially as the initial primacy of subjective conformity criteria has been given up and mandatory objective criteria of the digital content/services have been introduced. This gives European consumers a mandatory protection regime shielding them from the widely used liability restriction clauses. The provisions on remedies have been improved and fine-tuned, starting from the flexible hierarchy of the remedies and ending with deletion of the much-criticized maximum harmonising damages provision. The new directive puts liability for the digital content to the retail sector: it is the traders, the contractual partners of the consumer who are liable for the supply and defects of the digital content even if the digital content is provided by third parties (usually the copyright holders). Whereas the directive is maximum harmonising in principle, several important questions such as the liability periods, obligations of the consumer as well as the remedies of the trader are still left to national law. Finally, as the directive is not based on standard contract typology, the transposition could turn out to be challenging for Member States with civil codes where rules on contractual remedies depend upon contract type.

The new Directive on Contracts for Supply of Digital Content and Digital Services – Conformity Criteria, Remedies and Modifications – Part 2