YEAR 2021 N.º 2

ISSN 2182-9845

Modifications on the digital content or digital service by the trader in the Directive (EU) 2019/770

Martim Farinha

Keywords

Digital Content; Digital Service; Modifications; Updates; Conformity.

Abstract

In 2019, the EU approved a package of legislation aimed at modernizing many aspects of consumer law, to face the challenges of the Digital Single Market. Among them, the Directive (EU) 2019/770 takes the task of creating a legal framework to ensure the protection of consumers in contracts on the supply of digital services and content – addressing conformity requirements, the remedies available to consumers and the subject of modifications made on those services and content by the trader. The provisions on the latter will be scrutinized and developed, with the goal of fully comprehending the legal framework on modifications and attempting to answer the questions surrounding it. What is a modification; when is the trader obliged to provide them; what are the instances and conditions required for discretionary modifications beyond the scope of maintaining conformity; how transparent should the trader be regarding these practices; and what rights and remedies do consumers possess? Finally, two real examples of T&C regarding modifications will be analyzed considering this Directive and its future transposition.

Table of contents

1. Introduction
2. The Contract to supply digital content and digital services
3. What is a modification of the digital content or service of a contract?
3.1. Some practical examples of modifications
4. When can a modification be implemented by the trader?
4.1. Modifications to bring the service or content into conformity
4.2. The Obligation to supply updates – modifications to maintain conformity
4.3. Discretionary modifications carried out by the trader under article 19
a) Contractual clauses that allow modifications
b) Valid reasons to modify 
c) No additional costs to the consumer
d) The duty to inform the consumer of the modification
5. The consumer’s right to termination of the contract
5.1. Conditions of the right to termination of the contract by the consumer
5.2. Effects of Termination
6. Short commentary on some practical examples: Dropbox and Netflix’s Terms
6.1. Dropbox’s T&C
6.2. Netflix’s ToU
7. Conclusion – Digital Force, Trade Secrets and the enforceability of transparency and notifications requirements of the DCD
Case Law