Within the framework of the amendment to the Civil Code, which is being prepared also in connection with the adoption of the Directive on certain aspects concerning contracts for the supply of digital content and digital services, entirely new legal regulation in the area of provision of digital content (and in the area of provision of digital content services) is to be incorporated into Czech law. The basis of this new Czech regulation is to apply not only to consumer relations (i.e. to relations between traders and consumers), but also to all other situations where digital content or services are provided.
According to the Directive, digital content is “data which are produced and supplied in digital form”. According to the explanatory memorandum, this concept is to include “for example video files, audio files, music files, computer programs, applications, digital games, e-books and other electronic publications”.
Digital service is to mean “a service that allows the user to create, process or store data in digital form or to access them, to share data in digital form uploaded or created by this or another user of that service, or any other interaction with such data”. According to a recital of the Directive, this concerns a range of services based on the principle of “software-as-a-service, sharing of video and audio recordings and other files, word processing or games offered in the cloud computing and social media environment”. This means that if traders do not actually specialise exclusively in the sale of tangible goods, the new regulation may affect them. We would certainly recommend in such a case devoting sufficient attention to the new regulation (it is very specific), particularly where they provide digital content or services to consumers. In this area too, for example, a consumer may, upon fulfilment of certain conditions, withdraw from the contract, which may have negative impacts on the entire business model.
Within the Civil Code, an entire new section consisting of provisions §§ 2389a to 2389u is to be devoted to this issue. Individual variants of providing these services shall be distinguished legislatively; thus, regulation is to be addressed for continuous performance provided for a certain period (for example streaming services on a subscription basis), for one-off performance (making available an audiobook) and for repeated one-off performance. Where a licence is also necessary for the use of digital content (for the use of a computer program), it will continue to be necessary to conclude the licence agreement itself.
A more detailed description of the individual provisions of the planned regulation exceeds the scope of the legal bulletin; however, it is possible to mention at least some of the most interesting provisions. For example, § 2389d paragraph 2 is to establish an obligation for the trader to provide updates necessary for the functioning of the digital content: “In addition to agreed updates, the provider shall ensure that updates which are necessary for the digital content to be without defects for the duration of the obligation are provided to the user and that he is notified of their availability.” In the case of consumer relations, there is to be an obligation for the trader to provide user support: “The provider is liable to the user that the digital content is provided with agreed accessories and instructions for use, including installation instructions, and with user support.” And last but not least, similarly to the case of portability of personal data under the GDPR, users shall be able to require the export of content created by them upon termination of the contract (upon withdrawal from the contract by the user).
Josef Aujezdský
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal bulletin No. 5/2021 intended for members of this association.
This text was translated from Czech to English using an AI translator.