2021. 1.
these regulations is the Digital Content and Digital Services Contracts Regulations. Citation and scope.
these regulations is to transpose and implement Directive (EU) 2019/770
the European Parliament and
the Council
20th May 2019 on certain aspects concerning contracts for the supply
digital content and digital services, which lays down common rules on certain requirements concerning contracts between traders and consumers for the supply
digital content or digital service, in particular, rules on: (i) the conformity
digital content or a digital service with the contract; (ii) remedies in the event
a lack
such conformity or a failure to supply and the modalities for the exercise
those remedies; and (iii) service. the modification
digital content or a digital 2.
these regulations, unless the context otherwise requires: "Act" means the Consumers Affairs Act; "consumer" means any natural person who, in relation to contracts covered by these regulations, is acting for purposes which are outside that person's trade, business, craft, or profession; "compatibility" means the ability
the digital content or digital service to function with hardware or software with which digital content or digital services
the same type are normally used, without the need to convert the digital content or digital service; "digital content" means data which is produced and supplied in digital form; "digital environment" means hardware, software and any network connection used by the consumer to access or make Interpretation. Cap. 378. 2 [ S.L.378.20 DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS use
digital content or a digital service; "digital service" means: (
or any other interaction with data in digital form uploaded or created by the consumer or other users
that service; "durable medium" means any instrument which enables the consumer or the trader to store information addressed personally to that person in a way that is accessible for future reference, for a period
time adequate for the purposes
the information and which allows the unchanged reproduction
the information stored; "functionality" means the ability
the digital content or digital service to perform its functions having regard to its purpose; "goods with digital elements" means any tangible movable items that incorporate, or are inter-connected with, digital content or a digital service in such a way that the absence
that digital content or digital service would prevent the goods from performing their functions; "integration" means the linking and incorporation
digital content or a digital service with the components
the consumer’s digital environment in order for the digital content or digital service to be used in accordance with the requirements for conformity provided for by these regulations; "interoperability" means the ability
the digital content or digital service to function with hardware or software different from those with which digital content or digital services
the same type are normally used; "personal data" means personal data as defined in point
Regulation (EU) 2016/679; "price" means money or a digital representation
value that is due in exchange for the supply
digital content or a digital service; "trader" means any natural or legal person, irrespective
whether privately or publicly owned, that is acting, including through any other person acting in that natural or legal person's name or on that person's behalf, for purposes relating to that person's trade, business, craft, or profession, in relation to DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS [ S.L.378.20 contracts covered by these regulations.
any conflict between the definitions and expressions in the regulations and in the Act, the definitions and expressions in these regulations shall prevail, limitedly for the purposes
these regulations and to the extent that these regulations apply. 3.
supplying the digital content or digital service in accordance with these regulations or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process that data for any other purpose.
regulations 4 and 12, these regulations shall also apply to any tangible medium which serves exclusively as a carrier
digital content.
the definition
"goods with digital elements" in regulation 2, and which are provided with the goods under a sales contract concerning those goods, irrespective
whether such digital content or digital service is supplied by the seller or by a third party. In the event
doubt as to whether the supply
incorporated or inter-connected digital content or an incorporated or inter-connected digital service forms part
the sales contract, the digital content or digital service shall be presumed to be covered by the sales contract.
services other than digital services, regardless
whether digital forms or means are used by the trader to produce the output
the service or to deliver or transmit it to the consumer; Applicability. 3 4 [ S.L.378.20 DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS (b) electronic communications services as defined in point
Directive (EU) 2018/1972, with the exception
number-independent interpersonal communications services as defined in point
that Directive; S.L. 528.03. (c) healthcare as defined in regulation 2
the CrossBorder Healthcare Regulations; (d) gambling services, namely, services that involve wagering a stake with pecuniary value in games
chance, including those with an element
skill, such as lotteries, casino games, poker games and betting transactions, by electronic means or any other technology for facilitating communication and at the individual request
a recipient
such services; S.L. 330.07. (e) financial services as defined in regulation 2
the Distance Selling (Retail Financial Services) Regulations; (f) software
fered by the trader under a free and open-source licence, where the consumer does not pay a price and the personal data provided by the consumer are exclusively processed by the trader for the purpose
improving the security, compatibility or interoperability
that specific software; (g) the supply
digital content where the digital content is made available to the general public other than by signal transmission as a part
a performance or event, such as digital cinematographic projections; Cap. 546. (h) digital content provided in accordance with the Re-use
Public Sector Information Act.
supply
digital content or a digital service and elements
the provision
other services or goods, these regulations shall only apply to the elements
the contract concerning the digital content or digital service.
Directive (EU) 2018/1972 includes elements
an internet access service as defined in point
Regulation (EU) 2015/2120
the European Parliament and
the Council or a number-based interpersonal communications service as defined in point
Directive (EU) 2018/1972: Provided that without prejudice to Article 107
Directive (EU) 2018/1972, the effects that the termination
one DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS [ S.L.378.20 5 element
a bundle contract may have on the other elements
the bundle contract shall be governed by national law.
these regulations conflicts with a provision
a European Union act governing a specific sector or subject matter, the provision
that other European Union act shall take precedence over the provisions
these regulations.
personal data shall apply to any personal data processed in connection with the contracts referred to in sub-regulation
the European Parliament and
the Council
27 April 2016 on the protection
natural persons with regard to the processing
personal data and on the free movement
such data, and repealing Directive 95/46/EC (General Data Protection Regulation), the Data Protection Act and the Processing
Personal Data (Electronic Communications Sector) Regulations. In the event
conflict between the provisions
these regulations and European Union law on the protection
personal data, the latter prevails.
these regulations shall apply to the supply
digital content or digital services which occurs from 1 January 2022 with the exceptions
regulations 18 and 19 which shall only apply to contracts concluded from that date. 4.
the contract. Supply
digital content or digital service.
the digital content or digital service. 6 DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS [ S.L.378.20 Subjective requirements for conformity. 6. In order to conform with the contract, the digital content or digital service shall, in particular, where applicable: (a) be
the description, quantity and quality, and possess the functionality, compatibility, interoperability and other features, as required by the contract; (b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the trader at the latest at the time
the conclusion
the contract, and in respect
which the trader has given his acceptance; (
the same type would normally be used, taking into account, where applicable, any existing Union and national law, technical standards or, in the absence
such technical standards, applicable sector-specific industry codes
conduct; (b) be
the quantity and possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for digital content or digital services
the same type and which the consumer may reasonably expect, given the nature
the digital content or digital service and taking into account any public statement made by or on behalf
the trader, or other persons in previous links
the chain
transactions, particularly in advertising or on labelling unless the trader shows that: (i) the trader was not, and could not reasonably have been, aware
the public statement in question; (ii) by the time
conclusion
the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made; or (iii) the decision to acquire the digital content or digital service could not have been influenced by the public statement; DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS [ S.L.378.20 (c) where applicable, be supplied along with any accessories and instructions which the consumer may reasonably expect to receive; and (d) comply with any trial version or preview
the digital content or digital service, made available by the trader before the conclusion
the contract.
and supplied with updates, including security updates, that are necessary to keep the digital content or digital service in conformity, for the period
time: (a) during which the digital content or digital service is to be supplied under the contract, where the contract provides for a continuous supply over a period
time; or (b) that the consumer may reasonably expect, given the type and purpose
the digital content or digital service and taking into account the circumstances and nature
the contract, where the contract provides for a single act
supply or a series
individual acts
supply.
conformity resulting solely from the lack
the relevant update, provided that: (a) the trader informed the consumer about the availability
the update and the consequences
the failure
the consumer to install it; and (b) the failure
the consumer to install or the incorrect installation by the consumer
the update was not due to shortcomings in the installation instructions provided by the trader.
digital content or digital service over a period
time, the digital content or digital service shall be in conformity throughout the duration
that period.
conformity within the meaning
sub-regulation
the conclusion
the contract, the consumer was specifically informed that a particular characteristic
the digital content or digital service was deviating from the objective requirements for conformity laid down in subregulation
the conclusion
the contract. Incorrect integration
the digital content or digital service. 8. Any lack
conformity resulting from the incorrect integration
the digital content or digital service into the consumer's digital environment shall be regarded as lack
conformity
the digital content or digital service if: (
any right
a third party, in particular intellectual property rights, prevents or limits the use
the digital content or digital service in accordance with regulations 6 and 7, the consumer shall be entitled to the remedies for lack
conformity under regulation 13. Liability
the trader. 10.
supply or a series
individual acts
supply, the trader shall be liable for any lack
conformity under regulations 6, 7 and 8 which exists at the time
supply, without prejudice to point (b)
regulation 7
conformity that becomes apparent within two years from the time
supply, without prejudice to point (b)
regulation 7
time, the trader shall be liable for a lack
conformity under regulations 6, 7 and 8, that occurs or becomes apparent within the period
time during which the digital content or digital service is to be supplied under the contract. Burden
proof. 11.
proof with regard to whether the digital content or digital service was supplied in accordance with regulation 4 shall be on the trader.
proof with regard to whether the supplied digital content or digital service was in conformity at the time
supply shall be on the trader for a lack
conformity which becomes apparent within a period
one year from the time when the digital content or digital service was supplied.
DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS [ S.L.378.20 9 proof with regard to whether the digital content or digital service was in conformity within the period
time during which the digital content or digital service is to be supplied under the contract shall be on the trader for a lack
conformity which becomes apparent within that period.
the consumer is not compatible with the technical requirements
the digital content or digital service and where the trader informed the consumer
such requirements in a clear and comprehensible manner before the conclusion
the contract.
the lack
conformity
the digital content or digital service at the time specified in regulation 10
such requirement in a clear and comprehensible manner before the conclusion
the contract, the burden
proof with regard to whether the lack
conformity existed at the time specified in regulation 10
time, as expressly agreed to by the parties, the consumer shall be entitled to terminate the contract. Remedy for failure to supply.
lack
conformity, the consumer shall Remedies for lack
conformity. 10 DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS [ S.L.378.20 be entitled to have the digital content or digital service brought into conformity, to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this regulation.
the case, including: (a) the value the digital content or the digital service would have if there was no lack
conformity; and (b) the significance
the lack
conformity.
conformity, free
charge and without any significant inconvenience to the consumer, taking account
the nature
the digital content or digital service and the purpose for which the consumer required the digital content or the digital service.
the price in accordance with sub-regulation
a price, or the termination
the contract in accordance with sub-regulation
the following cases: (a) the remedy to bring the digital content or the digital service into conformity is impossible or disproportionate in accordance with sub-regulation
conformity appears despite the trader’s attempt to bring the digital content or the digital service in conformity; (d) the lack
conformity is
such a serious nature as to justify an immediate price reduction or the immediate termination
the contract; or (e) the trader has declared, or it is clear from the circumstances, that the trader will not bring the digital content or the digital service into conformity within a reasonable time, or without significant inconvenience for the consumer.
the digital content or the digital service which was supplied to the consumer compared to the value that the digital content or the digital service would have if it was in conformity: Provided that where the contract stipulates that the digital content or the digital service shall be supplied over a period
time in exchange for the payment
a price, the reduction in price shall apply to the period
time during which the digital content or the digital service was not in conformity.
a price, the consumer shall be entitled to terminate the contract only if the lack
conformity is not minor. The burden
proof with regard to whether the lack
conformity is minor shall be on the trader. 14. The consumer shall exercise the right to terminate the contract by means
a statement to the trader expressing the decision to terminate the contract. Exercise
the right
termination. 15.
termination
the contract, the trader shall reimburse the consumer for all sums paid in terms
the contract: Obligations
the trader in the event
termination. Provided that, in cases where the contract provides for the supply
the digital content or the digital service in exchange for a payment
a price and over a period
time, and the digital content or the digital service had been in conformity for a period
time prior to the termination
the contract, the trader shall reimburse the consumer only for the proportionate part
the price paid corresponding to the period
time during which the digital content or digital service was not in conformity, and any part
the price paid by the consumer in advance for any period
the contract that would have remained had the contract not been terminated.
personal data
the consumer, the trader shall comply with the obligations applicable in terms
Regulation (EU) 2016/679
the European Parliament and
the Council
27 April 2016 on the protection
natural persons with regard to the processing
personal data and on the free movement
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) and the Data Protection Act.
the digital content or the digital service supplied by the trader; (
the content.
sub-regulation
the consumer, make available to the consumer any content other than personal data, which was provided or created by the consumer when using the digital content or the digital service supplied by the trader. The consumer shall be entitled to retrieve that digital content free
charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.
the digital content or the digital service by the consumer, in particular by making the digital content or digital service inaccessible to the consumer or disabling the user account
the consumer, without prejudice to subregulation
the consumer in the event
termination. 16.
the contract, the consumer shall refrain from using the digital content or digital service and from making it available to third parties.
the trader, return the tangible medium to the trader without undue delay. If the trader decides to request the return
the tangible medium, that request shall be made within fourteen
the day on which the trader is informed
the consumer's decision to terminate the contract.
the digital content or digital service in the period, prior to the termination
the contract, during which the digital content or the digital service was not in conformity. Time limits and means
reimbursement by the trader. 17.
the contract shall be carried out without undue delay and, in any event, within fourteen
the date on which the trader is informed
the consumer’s decision to invoke the consumer's right for a price reduction or to terminate the contract.
payment that the consumer used to pay for the digital DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS [ S.L.378.20 13 content or digital service, unless the consumer expressly agrees otherwise and provided that the consumer does not incur any fees as a result
such reimbursement.
the reimbursement. 18.
time, the trader may modify the digital content or digital service beyond what is necessary to maintain the digital content or digital service in conformity in accordance with regulations 6 and 7, if the following conditions are met: Modification
the digital content or digital service. (
the modification; and (d) in the cases referred to in sub-regulation
the features and time
the modification, and
the right to terminate the contract in accordance with subregulation
the possibility to maintain the digital content or the digital service without such a modification in accordance with sub-regulation
the digital content or the digital service, unless such negative impact is only minor. In that case, the consumer shall be entitled to terminate the contract free
charge within thirty
the receipt
the information or
the time when the digital content or the digital service has been modified by the trader, whichever is later.
any failure to supply the digital content or the digital service, or because
a lack
conformity resulting from an act or omission by a person in previous links
the chain
transactions, the trader shall be entitled Right
redress. 14 [ S.L.378.20 DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS to pursue remedies against the persons liable in the chain
commercial transactions. Mandatory nature. 20.
the consumer, excludes the application
the provisions
these regulations, derogates from them or varies their effects before the failure to supply or the lack
conformity is brought to the trader's attention by the consumer, or before the modification
the digital content or the digital service in accordance with regulation 18 is brought to the consumer’s attention by the trader, shall not be binding on the consumer.
fering the consumer contractual arrangements that go beyond the protection provided for in these regulations. Penalties and right
appeal. 21.
the Act regarding judicial proceedings instituted by the Director General following prima facie finding
infringements, the Civil Court shall impose penalties
not less than five hundred euro (€500) and not more than forty-seven thousand euro (€47,000) on any person who fails to comply with any
the provisions
these regulations.
Appeal, on any point
law and, or
fact, by means
an application filed in the registry
the Court
Appeal within twenty
the judgment
the Civil Court: Provided that the Court
Appeal shall appoint the case for hearing by not later than six
the Civil Court.
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.