The supply of digital content and digital services : towards an improved legal framework in the EU

Abstract

In today’s digital world, contracts for the supply of digital content and services are an integral part of the daily life of Europe’s digital consumers considering that such contracts are concluded on a regular basis by millions of consumers across the globe. At present, the supply of digital content and services at EU level falls within the scope of the maximum harmonisation Consumer Right Directive and the minimum harmonisation E-Commerce Directive, yet these directives fail to provide a detailed provision on the mutual rights and duties that the parties under these type of contracts have. To address this high level of uncertainty surrounding the protection of digital consumers, the European Commission has presented a proposal the Directive of digital content to consumer as part of the implementation of the Digital Single Market Strategy in 2015. The ultimate idea is to fundamentally change the contractual regime for selling digital content to the consumers by providing the first EU-wide ‘digital contracts and services’ and to eliminate cross-border online trade barriers by creating a solid consumer protection framework for digital content products. This thesis analyses the Directive in relation to the contractual relationship between the supplier and consumer of digital content to establish whether the Directive will attain its purpose of increasing the confidence of European consumers while achieving the real functioning of the single market. This thesis argues that while the Directive is presented as part as an instrument to fill a gap in the Consumer Acquis, it is primarily concerned with harmonising contract law to cater for previous failed attempts to harmonise Contract law. The thesis also highlights that in its current form due to some of its requirements imposed on businesses, the Directive may lead to inadvertent consequences for consumers. While this thesis recognises the effort of the Directive to enhance consumer protection in this area, posits that some of its provisions needs to be re-examined.