Digital content and services

Almost anything can be bought on the internet, not just everyday items. Consumers download movies, subscribe to streaming platforms, play games online, use social media or store files in the cloud. This digital content and these services have been subject to very specific European rules since June 2022, as stipulated in European Directive 2019/770.

Your rights are as follows if:

• you have not received the digital content or service;
• the digital content or service is not working successfully;
• the supplier unilaterally modifies the digital content or service following delivery;

The digital content and/or service is not delivered

Did you not receive the download link for the movie you just purchased? Are you unable to access the streaming platform you have subscribed to? Has the web shop not sent the online game you have just treated yourself to?

Write to the seller and ask them to deliver what you ordered.

The trader still doesn’t deliver? You have the right to demand a refund for your purchase. The same applies when:

• the seller indicates that they will not provide the digital content or service or this is abundantly clear from the circumstances
  OR
• the seller provides the digital content or service after the date you agreed at the time of purchase even though you clearly communicated that this date was essential as far as you’re concerned.

Good to know: you have a right of withdrawal for a period of 14 days, subject to specific conditions. Find out in which cases.

The legal guarantee concerning digital content and services

Is the movie you legally downloaded of poor quality? Is the streaming platform you are using not stable? Is the online video game you are playing plagued with bugs? If you have purchased digital content or services (or obtained them in exchange for personal data) for private, i.e. non-professional, purposes your purchase will be covered by the legal guarantee stipulated in European Directive 2019/770.

Find out more about the protection you are entitled to:

• Which products are covered?
• How long is the guarantee period?
• Which problems are covered?
• Who has to substantiate a defect?
• Which deadlines need to be observed?
• What kind of solution can you demand?
• What about your private data?

Which products are covered?

This encompasses the following:

• Any digital content
  i.e. any data produced and supplied in digital format (e.g. movies, music and games, downloaded, obtained via streaming or on a physical medium such as a DVD or USB drive)
  
  
• Any digital services
  i.e. any service that allows you to create, process, store or access data in digital format, or any service that enables sharing or other interactions with data in digital format uploaded or created by you or other users of this service (e.g. social networks, content-sharing sites, cloud storage).

Which products are not covered by this legislation?

• Products containing digital elements
  i.e. movable physical items that contain digital content or a digital service or are incorporated into such content or services in such a way that the absence of the digital content or service would prevent the device from performing successfully (e.g. a smart phone, computer, smart watch). Goods of this nature are covered by the legal guarantee concerning consumer goods.

Please note: are you purchasing something from a private individual? If so, the legal guarantee does not apply. The rules that apply in such cases are different and provide a lower level of protection.

How long is the guarantee period?

Is the digital content or service delivered as a one offer or as a series of separate deliveries? The legal guarantee period is two years, starting from the date of delivery of the digital content or service. 

Will the digital content or service be supplied continuously for a fixed period as stipulated in the agreement? If so, the guarantee will apply for the duration of the agreement.

Which problems are covered?

The legal guarantee applies to any lack of conformity that affects the digital content or service you have purchased, for example if:

• the characteristics of your purchase do not match those of the model presented (e.g. you ordered one film but received another)
• the quality/quantity and performance do not meet your expectations and don’t comply with the seller’s or manufacturer’s claims (e.g. you purchased 100 GB of cloud storage and only received 20 GB)
• you cannot use the product for its intended purpose or for special requirements which you specifically stipulated and the trader accepted (e.g. you purchased software which does not work on your computer model, even though you notified the trader accordingly)
• the digital content or service were not supplied with all the accessories or instructions that were stipulated in the agreement or that you could reasonably expect to receive (e.g. you purchased software but the installation instructions were not provided as stipulated in the agreement)
• the digital content or service is not regularly updated as stipulated in the agreement or as you might reasonably expect (e.g. security updates for your software are no longer provided by the trader)
• the digital content or service does not comply with the trial version or preview that may have been made available by the trader prior to the agreement (e.g. the video game you purchased is not the same as the demonstration version you tested of a similar game).

The professional trader installed your digital content or service incorrectly? Or did you complete the installation incorrectly because you received inaccurate installation instructions? If so, you are covered by the legal guarantee.

Please note: the legal guarantee does not apply to a defect which you were aware of at the time of purchase.

Who must provide proof of the fact that the disputed defect is due to a lack of conformity?

As explained above, the legal guarantee only covers the lack of conformity inherent in the digital content or service. It obviously does not cover defects resulting from improper use or non-compliance with the installation instructions. This raises the question as to who should provide proof: who must substantiate the nature of the disputed defect?

In this regard, the law makes a distinction depending on whether the digital content or service is provided as a one-off or continuously over a certain period of time:

• The digital content or service is delivered as a one-off or as a series of separate deliveries (e.g. downloading a movie, buying a video game, downloading multiple pieces of music, etc.)? The burden of proof depends upon the following time frames:
  • Has the defect occurred within one year of delivery of the digital content or service? In such cases the trader is considered to be responsible and they are obliged to intervene as part of the legal guarantee unless they can prove that:
    • there is no defect
    • you caused the defect, or
    • you were aware of the defect prior to the conclusion of the agreement and consequently accepted it.
  • Has the defect occurred more than one year after the delivery of the digital content or service? The dealer may ask you to prove that the defect is due to a lack of conformity. This means that you will have to call upon the services of an expert, which is expensive. Unfortunately, it is sometimes not worth the effort.
• Is the digital content or service being provided continuously for a specified period (e.g. a subscription to a streaming site, software, etc.)? The burden of proof depends upon the following time frames:
  • The defect has occurred during the period in which the digital content or service is to be delivered in accordance with the agreement? In such cases the trader is considered to be responsible and they are obliged to intervene as part of the legal guarantee unless they can prove that:
    • there is no defect
    • you caused the defect, or
    • you were aware of the defect prior to the conclusion of the agreement and consequently accepted it.
  • The defect has occurred after the period during which the digital content or service had to be supplied? The dealer may ask you to prove that the defect is due to a lack of conformity. This means that you will have to call upon the services of an expert, which is expensive. Unfortunately, it is sometimes not worth the effort.

Please note: has the trader demonstrated that your digital environment is not compatible with the technical requirements of the content or service you were sold and that they had notified you of these requirements in an unequivocal and understandable manner prior to the conclusion of the agreement? It is up to you, regardless of when the problem occurred, to prove that the identified fault is due to a lack of conformity.

Which deadlines need to be observed?

Are you planning to go to court? If so, you must proceed within one year of the identification of the defect. A swift response is necessary.

Does the defect only surface after 2 years? Or following the uninterrupted delivery period of the digital content or service? If so, the ‘Hidden Defects’ principle applies (see Civil Code: article 1641 and following FR/NL). You must prove that the defect was present at the time of purchase and if that is the case you are entitled to demand a refund or discount from the seller.

What kind of solution can you demand?

The provider/trader of the digital product or service is responsible for any defect. They cannot simply refer you to the developer.

The seller must:

• ensure the conformity of the digital content or service and bear any costs related to the conformity of the defective digital content or service, including any delivery and return costs (if the digital content or service was delivered on a physical carrier).
  OR
• refund all or part of the purchase price if the delivery of a compliant version proves impossible or disproportionate or if it was not performed by the seller or would cause significant inconvenience.

Are you entitled to a refund? The seller must refund you within 14 days of your notification:

• Was/is the digital content or service delivered as a one-off or as a series of separate deliveries? The trader must reimburse the full amount you paid as part of the agreement.
• Will the digital content or service be provided continuously for a specific period of time? The trader only has to reimburse you for the share corresponding to the period during which the digital content or service was not compliant and any share of the price you paid in advance for the term of the agreement that would have remained without resolution.

Good to know: the seller must provide a refund even if you used the non-compliant digital content or service.

Please note: once the agreement is terminated, you will no longer have access to the digital content or service and you will not be able to make it accessible to third parties. The trader may block your access. If you received the digital content or service on a physical medium (e.g. DVD, CD, USB stick), the trader may ask you to return it. You will have to do so within 14 days of you notifying them that you want to terminate the agreement. The seller must pay the return postage.

What about your private data?

The trader must process your personal data in accordance with the rules of the GDPR. Except in exceptional circumstances, they shall only be allowed to reuse any personal data you provided, no other content.

Unilateral modification of the digital content or service

The trader shall be entitled to modify the uninterrupted digital content or service to ensure that it remains compliant with what you agreed. Any further modifications shall only be acceptable providing:

• the agreement accommodates such changes and a valid reason is provided,
• this does not result in any additional costs,
• you are notified accordingly in an unequivocal and understandable manner.
• you are notified in advance of the characteristics and timing of the modifications, of your right to terminate the agreement, and of the option to retain the digital content or service without modification if a change would adversely affect your access to or use of the digital content or service.

Would the change have an adverse effect on your access to or use of the digital content/service?

• Major impact
  You shall be entitled to terminate the agreement at once and to receive a refund for the amount you have already paid for the period during which you cannot use the digital content or service.
  
  
• Minor impact
  You will have 30 days from the date of modification or notification of such a change to cancel your agreement.