DIGITAL CONTENT AND DIGITAL SERVICES CONTRACTS REGULATIONS

SUBSIDIARY LEGISLATION 378.20

DIGITAL CONTENT AND DIGITAL SERVICES

CONTRACTS REGULATIONS

1st January, 2022

LEGAL NOTICE 406 of 2021.

(1)

The title of these regulations is the Digital

Content and Digital Services Contracts Regulations.

(2)

The scope of these regulations is to transpose and

implement Directive (EU) 2019/770 of the European Parliament and

of the Council of 20th May 2019 on certain aspects concerning

contracts for the supply of digital content and digital services, which

lays down common rules on certain requirements concerning contracts

between traders and consumers for the supply of digital content or

digital service, in particular, rules on

(i)

the conformity of digital content or a digital

service with the contract;

(ii)

remedies in the event of a lack of such conformity

or a failure to supply and the modalities for the exercise of

those remedies; and

(iii)

the modification of digital content or a digital

service.

(1)

For the purposes of 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 of the digital content or

digital service to function with hardware or software with

which digital content or digital services of 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

DIGITAL CONTENT AND DIGITAL

SERVICES CONTRACTS

use of digital content or a digital service;

"digital service" means

(a)

a service that allows the consumer to

create, process, store or access data in digital form; or

(b)

a service that allows the sharing of or any

other interaction with data in digital form uploaded or

created by the consumer or other users of 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 of time adequate for the purposes of the

information and which allows the unchanged reproduction of

the information stored;

"functionality" means the ability of 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 of that digital content or digital service would prevent

the goods from performing their functions;

"integration" means the linking and incorporation of

digital content or a digital service with the components of 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 of the digital content

or digital service to function with hardware or software

different from those with which digital content or digital

services of the same type are normally used;

"personal data" means personal data as defined in point

(1) of Article 4 of Regulation (EU) 2016/679;

"price" means money or a digital representation of value

that is due in exchange for the supply of digital content or a

digital service;

"trader" means any natural or legal person, irrespective

of 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

contracts covered by these regulations.

(2)

Definitions and expressions used in these

regulations shall have the same meaning assigned to them in the

Act, and in the case of 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 of these regulations and to the extent that these

regulations apply.

(1)

These regulations shall apply to any contract

where the trader supplies or undertakes to supply digital content or a

digital service to the consumer and the consumer pays or undertakes to

pay a price.

(2)

These regulations shall also apply where the trader

supplies or undertakes to supply digital content or a digital service to

the consumer, and the consumer provides or undertakes to provide

personal data to the trader, except where the personal data provided by

the consumer are exclusively processed by the trader for the purpose

of 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.

(3)

These regulations shall also apply where the digital

content or digital service is developed in accordance with the

consumer's specifications.

(4)

With the exception of regulations 4 and 12, these

regulations shall also apply to any tangible medium which serves

exclusively as a carrier of digital content.

(5)

These regulations shall not apply to digital content or

digital services which are incorporated in or inter-connected with

goods within the meaning of the definition of "goods with digital

elements" in regulation 2, and which are provided with the goods

under a sales contract concerning those goods, irrespective of whether

such digital content or digital service is supplied by the seller or by a

third party. In the event of doubt as to whether the supply of

incorporated or inter-connected digital content or an incorporated or

inter-connected digital service forms part of the sales contract, the

digital content or digital service shall be presumed to be covered by

the sales contract.

(6)

These regulations shall not apply to contracts regarding

(a)

the provision of services other than digital

services, regardless of whether digital forms or means are used

by the trader to produce the output of the service or to deliver or

transmit it to the consumer;

DIGITAL CONTENT AND DIGITAL

SERVICES CONTRACTS

(b)

electronic communications services as defined in

point (4) of Article 2 of Directive (EU) 2018/1972, with the

exception

of

number-independent

interpersonal

communications services as defined in point (7) of Article 2 of

that Directive;

(c)

healthcare as defined in regulation 2 of the Cross-

Border Healthcare Regulations;

(d)

gambling services, namely, services that involve

wagering a stake with pecuniary value in games of chance,

including those with an element of 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 of a recipient of

such services;

(e)

financial services as defined in regulation 2 of the

Distance Selling (Retail Financial Services) Regulations;

(f)

software offered 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 of improving the

security, compatibility or interoperability of that specific

software;

(g)

the supply of digital content where the digital

content is made available to the general public other than by

signal transmission as a part of a performance or event, such as

digital cinematographic projections;

(h)

digital content provided in accordance with the

Re-use of Public Sector Information Act.

(7)

Without prejudice to sub-regulation (5), where a single

contract between the same trader and the same consumer includes in a

bundle elements of supply of digital content or a digital service and

elements of the provision of other services or goods, these regulations

shall only apply to the elements of the contract concerning the digital

content or digital service.

(8)

Regulation 18 shall not apply where a bundle within the

meaning of Directive (EU) 2018/1972 includes elements of an internet

access service as defined in point (2) of Article 2 of Regulation (EU)

2015/2120 of the European Parliament and of the Council or a

number-based interpersonal communications service as defined in

point (6) of Article 2 of Directive (EU) 2018/1972

Provided that without prejudice to Article 107(2) of

Directive (EU) 2018/1972, the effects that the termination of one

element of a bundle contract may have on the other elements of the

bundle contract shall be governed by national law.

(9)

If any provision of these regulations conflicts with a

provision of a European Union act governing a specific sector or

subject matter, the provision of that other European Union act shall

take precedence over the provisions of these regulations.

(10) European Union law on the protection of personal data

shall apply to any personal data processed in connection with the

contracts referred to in sub-regulation (2). In particular, these

regulations shall be without prejudice to Regulation (EU) 2016/679 of

the European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal

data and on the free movement of such data, and repealing Directive

95/46/EC (General Data Protection Regulation), the Data Protection

Act and the Processing of Personal Data (Electronic Communications

Sector) Regulations. In the event of conflict between the provisions of

these regulations and European Union law on the protection of

personal data, the latter prevails.

(11) These regulations shall be without prejudice to any other

applicable law on copyright and related rights, including the Copyright

Act and any regulations made thereunder.

(12) The provisions of these regulations shall apply to the

supply of digital content or digital services which occurs from 1

January 2022 with the exceptions of regulations 18 and 19 which shall

only apply to contracts concluded from that date.

(1) The trader shall supply the digital content or digital

service to the consumer. Unless the parties have agreed otherwise, the

trader shall supply the digital content or digital service without undue

delay after the conclusion of the contract.

(2)

The trader shall have complied with the obligation to

supply when

(a)

the digital content or any means suitable for

accessing or downloading the digital content is made available

or accessible to the consumer, or to a physical or virtual facility

chosen by the consumer for that purpose;

(b)

the digital service is made accessible to the

consumer or to a physical or virtual facility chosen by the

consumer for that purpose.

The trader shall supply to the consumer digital content or

a digital service that meets the requirements set out in regulations 6, 7

and 8, where applicable, without prejudice to regulation 9.

DIGITAL CONTENT AND DIGITAL

SERVICES CONTRACTS

In order to conform with the contract, the digital content

or digital service shall, in particular, where applicable

(a)

be of 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 of the conclusion of the

contract, and in respect of which the trader has given his

acceptance;

(c)

be supplied with all accessories, instructions,

including on installation, and customer assistance as required

by the contract; and

(d)

be updated as stipulated in the contract.

(1)

In addition to complying with any subjective

requirement for conformity, the digital content or digital service shall

(a)

be fit for the purposes for which digital content or

digital services of the same type would normally be used,

taking into account, where applicable, any existing Union and

national law, technical standards or, in the absence of such

technical standards, applicable sector-specific industry codes of

conduct;

(b)

be of 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 of the same type and which

the consumer may reasonably expect, given the nature of the

digital content or digital service and taking into account any

public statement made by or on behalf of the trader, or other

persons in previous links of the chain of transactions,

particularly in advertising or on labelling unless the trader

shows that

(i)

the trader was not, and could not

reasonably have been, aware of the public statement in

question;

(ii)

by the time of conclusion of 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;

(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 of the

digital content or digital service, made available by the trader

before the conclusion of the contract.

(2)

The trader shall ensure that the consumer is informed of

and supplied with updates, including security updates, that are

necessary to keep the digital content or digital service in conformity,

for the period of 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 of time; or

(b)

that the consumer may reasonably expect, given

the type and purpose of the digital content or digital service and

taking into account the circumstances and nature of the

contract, where the contract provides for a single act of supply

or a series of individual acts of supply.

(3)

Where the consumer fails to install, within a reasonable

time, updates supplied by the trader in accordance with sub-regulation

(2), the trader shall not be liable for any lack of conformity resulting

solely from the lack of the relevant update, provided that

(a)

the trader informed the consumer about the

availability of the update and the consequences of the failure of

the consumer to install it; and

(b)

the failure of the consumer to install or the

incorrect installation by the consumer of the update was not due

to shortcomings in the installation instructions provided by the

trader.

(4)

Where the contract provides for a continuous supply of

digital content or digital service over a period of time, the digital

content or digital service shall be in conformity throughout the

duration of that period.

(5)

There shall be no lack of conformity within the meaning

of sub-regulation (1) or (2) if, at the time of the conclusion of the

contract, the consumer was specifically informed that a particular

characteristic of the digital content or digital service was deviating

from the objective requirements for conformity laid down in sub-

regulation (1) or (2) and the consumer expressly and separately

accepted that deviation when concluding the contract.

(6)

Unless the parties have agreed otherwise, digital content

or a digital service shall be supplied in the most recent version

available at the time of the conclusion of the contract.

Any lack of conformity resulting from the incorrect

integration of the digital content or digital service into the consumer's

digital environment shall be regarded as lack of conformity of the

digital content or digital service if

(a)

the digital content or digital service was

integrated by the trader or under the trader's responsibility; or

(b)

the digital content or digital service was intended

to be integrated by the consumer and the incorrect integration

was due to shortcomings in the integration instructions

provided by the trader.

Where a restriction resulting from a violation of any right

of a third party, in particular intellectual property rights, prevents or

limits the use of the digital content or digital service in accordance

with regulations 6 and 7, the consumer shall be entitled to the remedies

for lack of conformity under regulation 13.

(1) The trader shall be liable for any failure to supply the

digital content or digital service in accordance with regulation 4.

(2)

Where a contract provides for a single act of supply or a

series of individual acts of supply, the trader shall be liable for any

lack of conformity under regulations 6, 7 and 8 which exists at the

time of supply, without prejudice to point (b) of regulation 7(2)

Provided that the trader shall only be liable for any lack

of conformity that becomes apparent within two years from the time of

supply, without prejudice to point (b) of regulation 7(2).

(3)

Where the contract provides for continuous supply over a

period of time, the trader shall be liable for a lack of conformity under

regulations 6, 7 and 8, that occurs or becomes apparent within the

period of time during which the digital content or digital service is to

be supplied under the contract.

(1) The burden of proof with regard to whether the digital

content or digital service was supplied in accordance with regulation 4

shall be on the trader.

(2)

In cases referred to in regulation 10(2), the burden of

proof with regard to whether the supplied digital content or digital

service was in conformity at the time of supply shall be on the trader

for a lack of conformity which becomes apparent within a period of

one year from the time when the digital content or digital service was

supplied.

(3)

In cases referred to in regulation 10(3), the burden of

proof with regard to whether the digital content or digital service was

in conformity within the period of time during which the digital

content or digital service is to be supplied under the contract shall be

on the trader for a lack of conformity which becomes apparent within

that period.

(4)

Sub-regulations (2) and (3) shall not apply where the

trader demonstrates that the digital environment of the consumer is not

compatible with the technical requirements of the digital content or

digital service and where the trader informed the consumer of such

requirements in a clear and comprehensible manner before the

conclusion of the contract.

(5)

The consumer shall co-operate with the trader, to the

extent reasonably possible and necessary, to ascertain whether the

cause of the lack of conformity of the digital content or digital service

at the time specified in regulation 10(2) or (3), as applicable, lay in the

consumer’s digital environment. The obligation to co-operate shall be

limited to the technically available means which are least intrusive for

the consumer. Where the consumer fails to cooperate, and where the

trader informed the consumer of such requirement in a clear and

comprehensible manner before the conclusion of the contract, the

burden of proof with regard to whether the lack of conformity existed

at the time specified in regulation 10(2) or (3), as applicable, shall be

on the consumer.

(1)

Where the trader has failed to supply the digital

content or digital service in accordance with regulation 4, the

consumer shall call upon the trader to supply the digital content or

digital service. If the trader then fails to supply the digital content or

digital service without undue delay, or within an additional period of

time, as expressly agreed to by the parties, the consumer shall be

entitled to terminate the contract.

(2)

Sub-regulation (1) shall not apply, and the consumer

shall be entitled to terminate the contract immediately, where

(a)

the trader has declared, or it is equally clear from

the circumstances, that the trader will not supply the digital

content or digital service;

(b)

the consumer and the trader have agreed, or it is

clear from the circumstances in which the contract was

concluded, that a specific time for the supply is essential for the

consumer and the trader fails to supply the digital content or the

digital service by or at that time.

(3)

Where the consumer terminates the contract under sub-

regulation (1) or (2), regulations 14 to 17 shall apply accordingly.

(1) In the case of lack of conformity, the consumer shall

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.

(2)

The consumer shall be entitled to have the digital content

or the digital service brought into conformity, unless this would be

impossible or would impose costs on the trader that would be

disproportionate, taking into account all the circumstances of the case,

including

(a)

the value the digital content or the digital service

would have if there was no lack of conformity; and

(b)

the significance of the lack of conformity.

(3)

The trader shall bring the digital content or digital

service into conformity pursuant to sub-regulation (2) within a

reasonable time from the time that the trader has been informed by the

consumer about the lack of conformity, free of charge and without any

significant inconvenience to the consumer, taking account of the

nature of the digital content or digital service and the purpose for

which the consumer required the digital content or the digital service.

(4)

The consumer shall be entitled to either a proportionate

reduction of the price in accordance with sub-regulation (5) where the

digital content or the digital service is supplied in exchange for a

payment of a price, or the termination of the contract in accordance

with sub-regulation (6), in any of 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 (2);

(b) the trader has not brought the digital content or

the digital service into conformity in accordance with sub-

regulation (3);

(c)

a lack of conformity appears despite the trader’s

attempt to bring the digital content or the digital service in

conformity;

(d)

the lack of conformity is of such a serious nature

as to justify an immediate price reduction or the immediate

termination of 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.

(5)

The reduction in price shall be proportionate to the

decrease in the value of 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 of

time in exchange for the payment of a price, the reduction in price

shall apply to the period of time during which the digital content or the

digital service was not in conformity.

(6)

Where the digital content or the digital service is

supplied in exchange for the payment of a price, the consumer shall be

entitled to terminate the contract only if the lack of conformity is not

minor. The burden of proof with regard to whether the lack of

conformity is minor shall be on the trader.

The consumer shall exercise the right to terminate the

contract by means of a statement to the trader expressing the decision

to terminate the contract.

(1)

In the event of termination of the contract, the

trader shall reimburse the consumer for all sums paid in terms of the

contract

Provided that, in cases where the contract provides for

the supply of the digital content or the digital service in exchange for a

payment of a price and over a period of time, and the digital content or

the digital service had been in conformity for a period of time prior to

the termination of the contract, the trader shall reimburse the consumer

only for the proportionate part of the price paid corresponding to the

period of time during which the digital content or digital service was

not in conformity, and any part of the price paid by the consumer in

advance for any period of the contract that would have remained had

the contract not been terminated.

(2)

In respect of personal data of the consumer, the trader

shall comply with the obligations applicable in terms of Regulation

(EU) 2016/679 of the European Parliament and of the Council of 27

April 2016 on the protection of natural persons with regard to the

processing of personal data and on the free movement of such data,

and repealing Directive 95/46/EC (General Data Protection

Regulation) and the Data Protection Act.

(3)

The trader shall refrain from using 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,

except where such content

(a)

has no utility outside the context of the digital

content or the digital service supplied by the trader;

(b)

only relates to the consumer's activity when using

the digital content or the digital service supplied by the trader;

(c)

has been aggregated with other data by the trader

and cannot be disaggregated or only with disproportionate

efforts; or

(d)

has been generated jointly by the consumer and

others, and other consumers are able to continue to make use of

the content.

(4)

Except in the situations referred to in paragraphs (a), (b)

or (c) of sub-regulation (3), the trader shall, at the request of 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 of

charge, without hindrance from the trader, within a reasonable time

and in a commonly used and machine-readable format.

(5)

The trader may prevent any further use of 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 of the consumer, without prejudice to sub-

regulation (4).

(1)

After the termination of the contract, the

consumer shall refrain from using the digital content or digital service

and from making it available to third parties.

(2)

Where the digital content was supplied on a tangible

medium, the consumer shall, at the request and at the expense of the

trader, return the tangible medium to the trader without undue delay. If

the trader decides to request the return of the tangible medium, that

request shall be made within fourteen (14) days of the day on which

the trader is informed of the consumer's decision to terminate the

contract.

(3)

The consumer shall not be liable to pay for any use made

of the digital content or digital service in the period, prior to the

termination of the contract, during which the digital content or the

digital service was not in conformity.

(1) Any reimbursement that is owed to the consumer by

the trader, pursuant to regulation 13(4) and (5) or 15(1), due to a price

reduction or termination of the contract shall be carried out without

undue delay and, in any event, within fourteen (14) days of the date on

which the trader is informed of the consumer’s decision to invoke the

consumer's right for a price reduction or to terminate the contract.

(2)

The trader shall carry out the reimbursement using the

same means of payment that the consumer used to pay for the digital

content or digital service, unless the consumer expressly agrees

otherwise and provided that the consumer does not incur any fees as a

result of such reimbursement.

(3)

The trader shall not impose any fee on the consumer in

respect of the reimbursement.

(1)

Where the contract provides that the digital

content or the digital service is to be supplied or made accessible to the

consumer over a period of 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

(a)

the contract allows, and provides a valid reason

for, such a modification;

(b)

such a modification is made without additional

cost to the consumer;

(c)

the consumer is informed in a clear and

comprehensible manner of the modification; and

(d)

in the cases referred to in sub-regulation (2), the

consumer is informed reasonably in advance on a durable

medium of the features and time of the modification, and of the

right to terminate the contract in accordance with sub-

regulation (2), or of the possibility to maintain the digital

content or the digital service without such a modification in

accordance with sub-regulation (4).

(2)

The consumer shall be entitled to terminate the contract

if the modification negatively impacts the consumer’s access to or use

of 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 of charge within thirty (30) days of the receipt of the

information or of the time when the digital content or the digital

service has been modified by the trader, whichever is later.

(3)

Where the consumer terminates the contract in

accordance with sub-regulation (2), regulations 14 to 17 shall apply

accordingly.

(4)

Sub-regulations (2) and (3) shall not apply if the trader

has enabled the consumer to maintain without additional cost the

digital content or the digital service without the modification, and the

digital content or the digital service remains in conformity.

Where the trader is liable to the consumer because of any

failure to supply the digital content or the digital service, or because of

a lack of conformity resulting from an act or omission by a person in

previous links of the chain of transactions, the trader shall be entitled

to pursue remedies against the persons liable in the chain of

commercial transactions.

(1)

Unless otherwise provided for in these

regulations, any contractual term which, to the detriment of the

consumer, excludes the application of the provisions of these

regulations, derogates from them or varies their effects before the

failure to supply or the lack of conformity is brought to the trader's

attention by the consumer, or before the modification of 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.

(2)

These regulations shall not prevent the trader from

offering the consumer contractual arrangements that go beyond the

protection provided for in these regulations.

(1)

Subject to the provisions of the Act regarding

judicial proceedings instituted by the Director General following

prima facie finding of infringements, the Civil Court shall impose

penalties of 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 of the provisions of these regulations.

(2)

Any person who feels aggrieved by a judgement, order,

penalty or measure issued by the Civil Court, may appeal before the

Court of Appeal, on any point of law and, or of fact, by means of an

application filed in the registry of the Court of Appeal within twenty

(20) days from the date of the judgment of the Civil Court

Provided that the Court of Appeal shall appoint the case

for hearing by not later than six (6) months from the judgement of the

Civil Court.