New legislative changes regarding contracts for the provision of digital content and digital services11 January 2022
If until recent times, the activity of selling digital content and services (e.g., online articles, e-books, games or other programmes) was not specifically regulated, the general framework in the field of consumer protection being applicable, from now on, under the new special provisions, consumers will benefit from specific and extended rights, including in the digital area.
On 30 December 2021, the Emergency Ordinance no. 141 on certain aspects related to contracts for the provision of digital content and digital services (“GEO 141/2021” or “Ordinance”) was published in the Official Gazette, which has entered into force on 9 January 2022. GEO 141/2021 transposes into law Directive (EU) 2019/770 bearing the same name.
The purpose of the new regulation is to ensure a high level of consumer protection and a proper functioning of the European internal market, GEO 141/2021 touching on issues related to:
► conformity of the digital content or digital service with the contract;
► remedies in case of lack of conformity or failure to supply and the modalities for the exercise of those remedies;
► modification of digital content or a digital service.
For better predictability, the Ordinance expressly specifies the situations in which it applies, as well as the cases that do not fall within its scope.
1. The scope of GEO 141/2021
Thus, GEO 141/2021 applies:
(i) to any contract where the trader supplies or undertakes to supply digital content or a digital service to the consumer, and the consumer either pays or undertakes to pay a price, or provides or undertakes to provide personal data to the trader. In the latter case, there are some exceptions, g., the situations 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 this Ordinance or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose;
(ii) if the digital content or digital service is developed in accordance with the consumer’s specifications;
(iii) any tangible medium which serves exclusively as a carrier of digital content, with some exceptions.
However, there are certain situations where the legislator has excluded the applicability of the Ordinance – amongst others, those regarding:
► digital content or digital services which are incorporated in or inter-connected with goods 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;
► 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;
► electronic communications services, as defined in the European Code of Electronic Communications, with the exception of number-independent interpersonal communications services;
► 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;
► financial services;
► the 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;
► 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.
2. Establishing requirements on the conformity of goods
In terms of ensuring conformity, GEO 141/2021 introduces subjective and objective requirements for conformity, both of which must be met in order for the digital content or service to be considered in conformity with the contract.
The subjective requirements for conformity address the reasonable expectations of the consumer as set out in the contract, and the digital content or service must meet the following requirements: (i) be of the description, quantity and quality, and possess the functionality, compatibility, interoperability and other features, as required by the contract; (ii) 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 acceptance; (iii) be supplied with all accessories, instructions, including on installation, and customer assistance as required by the contract; (iv) be updated as stipulated by the contract.
On the other hand, the objective requirements for conformity concern aspects inherent in the normal use of digital content or service, in addition to the subjective requirements set out above. According to these requirements, the digital content or service must:
► be fit for the purposes for which digital content or digital services of the same type would normally be used;
► be of the quantity and possess the qualities and performance features that are normal for digital content or services of the same type and that the consumer can reasonably expect (g., in terms of functionality, compatibility, accessibility, continuity and security);
► be supplied along with any accessories and instructions necessary for the consumer;
► 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.
Additionally, GEO 141/2021 also covers situations where there is an incorrect integration of digital content or service into the consumer’s digital environment, specifically when one of the following conditions is met: (i) the digital content or digital service was integrated by the trader or under the trader’s responsibility; or (ii) 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.
3. Burden of proof and remedies
The burden of proof regarding the proper provision of digital content or service rests with the trader.
GEO 141/2021 also provides a series of remedies in case of lack of conformity: (i) bringing the digital content or digital service into conformity; (ii) a proportionate reduction of the price; (iii) termination of the contract. The rule in these matters is to bring the digital content or service into conformity within a reasonable period of time, which may not exceed 15 calendar days from the time of notification of the seller, unless this would be impossible or would impose disproportionate costs on the trader. At the same time, in certain situations (e.g., it is impossible or disproportionate to comply; the trader has not brought the digital content or service into conformity or the lack of conformity persists, despite the trader’s attempt to remedy the problems, etc.), the consumer is entitled to a proportionate price reduction as long as the digital content or service has been provided in exchange for the payment of a price. Finally, the consumer has the right to obtain the termination of the contract, but only if the lack of conformity is not minor and the digital content or service has been provided in exchange for the payment of a price.
4. Modification of the digital content or service over a certain period of time
The new legislation also addresses the issue of modifying the digital content or service over a period of time, beyond what is necessary to maintain the digital content or service in conformity. In order to make such modifications, the trader must cumulatively comply with the following requirements:
► the contract allows, and provides a valid reason for, such a modification;
► such a modification is made without additional cost to the consumer;
► the consumer is informed in a clear and comprehensible manner of the modification;
► in cases where the modification will have a negative impact on the consumer’s access to the digital content or service or on its use by the consumer, 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, or of the possibility to maintain the digital content or digital service without such a modification.
Last but not least, with regard to the enforcement of the new piece of legislation, the Ordinance provides for a series of sanctions for non-compliance with its provisions, i.e., fines between RON 5,000 (approximately EUR 1,000) and RON 50,000 (approximately EUR 10,000), depending on the seriousness of each violation. The authority responsible for applying these sanctions is the National Authority for Consumer Protection (in Romanian: Autoritatea Națională pentru Protecția Consumatorului – ANPC). In addition to these fines, the trader may also be obliged to bring the digital content or service that is marketed into conformity, as well as to refund the amounts collected from the consumer.