Directive 2011/83/EU on consumer rights (hereinafter referred to as the “Directive”) also introduces new explicit regulation for the area of distribution of digital content. As has already been mentioned in previous circulars, the provisions of the Directive should be transposed into our legal system during 2013, whilst the legal regulation in the area of digital content is already reflected within the new Civil Code (Act No. 89/2012 Coll.). This, as we have also mentioned, shall enter into force on 1/1/2014.

According to recital 19 of the Directive, digital content means “data which are produced and supplied in digital form, such as computer programmes, applications, games, music, videos or texts, irrespective of whether they are accessed through downloading, streaming, from a physical medium or in any other way.” “Where digital content is supplied on a physical medium, such as CDs or DVDs, it should be considered as goods within the meaning of this Directive.” The two most important areas devoted to digital content within the Directive concern the trader’s information obligation and the possibility of withdrawal from a contract regarding the “supply” of digital content by the consumer.

In relation to the trader’s information obligation, the Directive provides that before the consumer is bound by any contract, the trader shall provide the consumer in a clear and comprehensible manner (if this information is not already apparent from the context) with information “on the functionality of the digital content, including applicable technical protection measures” and further information “on any relevant interoperability of the digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of”. These provisions of the Directive have found expression in Section 1811(2)(h) and (i) of the new Civil Code, which establishes that “where the parties’ conduct is directed towards concluding a contract and these facts are not apparent from the context, the trader shall inform the consumer sufficiently in advance of concluding the contract or before the consumer makes a binding offer…of information on the functionality of the digital content, including technical protection measures, and information on the interoperability of the digital content with hardware and software that are known to the trader or which can reasonably be expected to be known to him.” In accordance with the Directive, these provisions shall not apply where digital content is supplied on a physical medium (Section 1811(3) of the new Civil Code).

The regulation in the area of withdrawal from a contract regarding the supply of digital content (without giving reasons and without any sanction) is conceived rather interestingly from the trader’s perspective. Article 16(m) of the Directive provides that the consumer shall not be entitled to withdraw from a contract regarding the supply of digital content within a period of 14 days from its conclusion only where the trader has commenced performance of the contract before the expiry of this period with the consumer’s prior express consent and where the consumer has acknowledged that by giving such consent he will lose his right to withdraw from the contract. This means that in order to exclude the possibility of withdrawal from a contract regarding the supply of digital content, the consumer must: a) actively consent to the commencement of performance by the trader before the expiry of the 14-day period, b) be informed that by giving this consent he loses his right to withdraw from the contract.

These provisions of the Directive have been reflected in Section 1837(l) of the new Civil Code, where it is stated that “the consumer cannot withdraw from a contract…on the supply of digital content, if it was not supplied on a physical medium and was supplied with the consumer’s prior express consent before the expiry of the period for withdrawal from the contract and the trader informed the consumer before concluding the contract that in such case he does not have the right to withdraw from the contract.” It follows from the above that on the part of the trader, when providing digital content, it will be very important to pay attention to the setting up of the entire “purchasing” process.

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the civic association Association for Electronic Commerce (APEK) as legal circular No. 7/2012 intended for members of this association.

This text was translated from Czech to English using an AI translator.