On 1 January 2022 a new Act on the supply of digital content and digital services and the sale of goods entered into effect. This Act transposes Directive (EU) 2019/771 and Directive (EU) 2019/770 harmonizing certain aspects of the supply of goods, as well as the supply of digital content and digital services.
Who will be expected to comply with the new Act?
- Traders supplying digital content and digital services to consumers for consideration, including consideration comprising of personal data, which are processed for purposes outside the mere provision of the digital content or digital services. Such processing of personal data is not necessary to be made for commercial purposes.
- Traders selling goods to consumers online or in physical stores.
What is included in the terms digital content, digital services and goods under the new Act?
- Digital content is all data provided in digital form, including on a tangible medium (e.g. DVD, CD, USB devices and memory cards).
- Digital services are those allowing the consumer to create, process, store or access data in digital form, as well as services allowing sharing of or any other interaction with data in digital form uploaded or created by the consumer or by other users of that service.
- Goods are all movable items (including used goods, except if sold in a public tender) as well as “goods with digital elements” – for instance, devices 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 proper functioning (incl. smart devices with integrated operating system, applications or other software).
What are the obligations of the traders under the new Act?
The new Act stipulates a wider scope of warranty liability of the traders than the existing warranty rules under the Consumer Protection Act.
- The traders will be liable for the lack of conformity of the digital content, digital services or goods not only with the characteristics set out in the individual contracts but also with objective conformity requirements (incl. with statements made publicly in an advertisement or in the product label).
- The traders will be liable also for the lack of conformity related to requirements for integration of the digital content or the digital service in the digital environment of the consumer or resulting from incorrect installation (e. g. due to omissions in the instructions on installation).
- The Act introduces an obligation for updating the digital content and digital services (incl. when sold as an element of goods) in accordance with the terms agreed with the consumer or to the extent it is objectively necessary for preserving the conformity of the digital content, digital services or the goods with digital elements (incl. security updates).
Effective from 1 January 2022 the warranty liability under the Consumer Protection Act will apply only with respect to services (which are not digital). Certain rules set out in the Consumer Protection Act will still apply also to the sale of goods, as well as the sale of digital content and digital services (to the extent applicable) – for instance, labelling requirements, distant sales, prohibition of unfair commercial practices or contractual clauses, safety of goods, liability for damages due to defects, passing the risk upon delivery of goods.
What are the rights of the consumers in the occurrence of a lack of conformity?
In the occurrence of a lack of conformity of the digital content, digital service or the goods, the consumer is entitled to:
- claim from the trader to bring the digital content, digital service or the goods into conformity;
- to receive a proportionate reduction of the price; or
- to terminate the contract under the conditions set out in the Act.
Consumers can claim the above within the following terms:
- two years from the supply of the digital content or the digital service, if the contract is made for a one-off supply or a series of related supplies of digital content or a digital service;
- the period within which the digital content or digital service should be supplied, according to the contract with the consumer, if the contract stipulates continuous supply within a certain period of time;
- two years from the date of delivery in case of the sale of goods;
- two years from the date of delivery and (the beginning of) the provision of the digital content with respect to goods with digital elements (if such provision is continuous for a period of up to two years or for one-off provision of digital content or services);
- the period within which the digital content or the digital service should be supplied according to the contract on the sale of goods with digital elements, if the contract stipulates continuous supply of digital content or digital service for a period longer than two years.
What measures are expected from the traders to ensure compliance with the new Act?
In order to mitigate the likely risks from non-conformity of the digital content, digital services or the goods following the entry into effect of the new Act, the traders could:
- Review the digital content, digital services or the goods they offer for conformity with the characteristics set out in the consumer contracts, the provision of accessories thereto, the instructions on installation and the terms for updates.
- Review for conformity of the information made public by the trader with respect to the characteristics of the digital content, digital services or the goods (incl. in advertisements, websites or in product labels).
- Check whether the test version or the preview provided to the consumers are compliant with the respective digital content, digital content or the goods which are actually sold.
- Review whether they provide to the consumers all instructions which they can reasonably expect from the trader (incl. related to installation).
In 2022 traders can expect another major revision of the consumer protection rules due to the transposition of Directive 2019/2161 (known as the “Omnibus Directive”). The amendments of the Consumer Protection Act transposing the Omnibus Directive were filed for discussion in the Parliament in the beginning of December 2021.