Deviation from Objective Requirements for Conformity With a Contract of Digital Content or Digital Service: The Assessment of Its Use

Abstract

Currently the European Union (EU) is taking major steps in different legal areas including consumer protection law to implement the Digital Single Market Strategy in order to ensure effective and smooth functioning of the internal market in the modern economy. The new EU policy concerning the Consumer Digital Content Directive (Directive 2019/770) lays down common rules on requirements concerning contracts between traders and consumers for the supply of digital content or digital service. At the same time, the Directive allows deviation from the objective requirements for conformity with a contract of a digital content or digital service on the basis of certain preconditions explicitly envisaged by Article 8(5) of the Directive itself. The present article aims to discuss the possibility for use of such a deviation by critically assessing the preconditions for deviation to take place in conjunction with typical examples likely to appear in practice. The article begins by discussing the applicable regulation, providing a possibility for deviation from objective requirements for conformity with the contract. The article then proceeds to critical assessment of each precondition for use of a deviation in the light of examples that might either be permitted or not permitted under the applicable regulation. Furthermore, frequently used forms for supply of digital content or digital service are discussed considering the previous discussion of these preconditions, as deviation from objective requirements for conformity of digital content or digital service are most often found in online contracts. The article finishes by summarizing the discussion in the article.