(27) Providers of online_marketplaces should inform consumers whether the third party offering goods, services or digital content is a trader or non-trader, based on the declaration made to them by the third party.
When the third party offering the goods, services or digital content declares its status to be that of a non-trader, providers of online_marketplaces should provide a short statement to the effect that the consumer rights stemming from Union consumer protection law do not apply to the contract concluded.
Furthermore, consumers should be informed of how obligations related to the contract are shared between third parties offering the goods, services or digital content and providers of online_marketplaces.
The information should be provided in a clear and comprehensible manner and not merely in the standard terms and conditions or similar contractual documents.
The information requirements for providers of online_marketplaces should be proportionate.
Those requirements need to strike a balance between a high level of consumer protection and the competitiveness of providers of online_marketplaces.
Providers of online_marketplaces should not be required to list specific consumer rights when informing consumers about their non-applicability.
This is without prejudice to the consumer information requirements provided for in Directive 2011/83/EU, and in particular in Article 6(1) thereof.
The information to be provided about the responsibility for ensuring consumer rights depends on the contractual arrangements between the providers of online_marketplaces and the relevant third-party traders.
The provider of the online_marketplace could indicate that a third-party trader is solely responsible for ensuring consumer rights, or describe its own specific responsibilities where that provider assumes responsibility for certain aspects of the contract, for example, delivery or the exercise of the right of withdrawal.
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(30) The definitions of digital content and digital_services in Directive 2011/83/EU should be aligned to those in Directive (EU) 2019/770 of the European Parliament and of the Council (15).
Digital content covered by Directive (EU) 2019/770 covers a single act of supply, a series of individual acts of supply, or continuous supply over a period of time.
The element of continuous supply should not necessarily require a long-term supply.
Cases such as web-streaming of video clips should be considered continuous supply over a period of time, regardless of the actual duration of the audiovisual file.
It may therefore be difficult to distinguish between certain types of digital content and digital_services, since both can involve continuous supply by the trader over the duration of the contract.
Examples of digital_services are video and audio sharing services and other file hosting, word processing or games offered in the cloud, cloud storage, webmail, social media and cloud applications.
The continuous involvement of the service provider justifies the application of the rules on the right of withdrawal provided for in Directive 2011/83/EU that effectively allow the consumer to test the service and decide, during the 14-day period from the conclusion of the contract, whether to keep it or not.
Many contracts for the supply of digital content which is not supplied on a tangible medium are characterised by a single act of supply to the consumer of a specific piece or pieces of digital content, such as specific music or video files.
Contracts for the supply of digital content which is not supplied on a tangible medium remain subject to the exception from the right of withdrawal set out in point (m) of the first paragraph of Article 16 of Directive 2011/83/EU, which provides that the consumer loses the right of withdrawal when the performance of the contract is started, such as download or streaming of the content, subject to the consumer’s prior express consent to begin the performance during the right of withdrawal period and acknowledgement that he has thereby lost his right of withdrawal.
Where there is doubt as to whether the contract is a service_contract or a contract for the supply of digital content which is not supplied on a tangible medium, the rules on right of withdrawal for services should apply.
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(31) Digital content and digital_services are often supplied online under contracts under which the consumer does not pay a price but provides personal_data to the trader.
Directive 2011/83/EU already applies to contracts for the supply of digital content which is not supplied on a tangible medium (i.e.
supply of online digital content) regardless of whether the consumer pays a price in money or provides personal_data.
However, that Directive only applies to service_contracts, including contracts for digital_services, under which the consumer pays or undertakes to pay a price.
Consequently, that Directive does not apply to contracts for digital_services under which the consumer provides personal_data to the trader without paying a price.
Given their similarities and the interchangeability of paid digital_services and digital_services provided in exchange for personal_data, they should be subject to the same rules under that Directive.
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(32) Consistency should be ensured between the scope of application of Directive 2011/83/EU and Directive (EU) 2019/770, which applies to contracts for the supply of digital content or digital_services under which the consumer provides or undertakes to provide personal_data to the trader.
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(33) Therefore, the scope of Directive 2011/83/EU should be extended to cover also contracts under which the trader supplies or undertakes to supply a digital_service to the consumer, and the consumer provides or undertakes to provide personal_data.
Similar to contracts for the supply of digital content which is not supplied on a tangible medium, that Directive should apply whenever the consumer provides or undertakes to provide personal_data to the trader, except where the personal_data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital content or digital_service, and the trader does not process those data for any other purpose.
Any processing of personal_data should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council (16).
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(34) In order to ensure full alignment with Directive (EU) 2019/770, where digital content and digital_services are not supplied in exchange for a price, Directive 2011/83/EU should also not apply to situations where the trader collects personal_data for the sole purpose of meeting legal requirements to which the trader is subject.
Such situations can include, for instance, cases where the registration of the consumer is required by applicable laws for security and identification purposes.
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(35) Directive 2011/83/EU should also not apply to situations where the trader only collects metadata, such as information concerning the consumer’s device or browsing history, except where this situation is considered to be a contract under national law.
It should also not apply to situations where the consumer, without having concluded a contract with the trader, is exposed to advertisements exclusively in order to gain access to digital content or a digital_service.
However, Member States should remain free to extend the application of that Directive to such situations, or to otherwise regulate such situations, which are excluded from the scope of that Directive.
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(36) The notion of functionality should be understood to refer to the ways in which digital content or a digital_service can be used.
For instance, the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding could have an impact on the ability of the digital content or digital_service to perform all its functions having regard to its purpose.
The notion of interoperability relates to whether and to what extent digital content or a digital_service is able to function with hardware or software that is different from those with which digital content or digital_services of the same type are normally used.
Successful functioning could include, for instance, the ability of the digital content or digital_service to exchange information with such other software or hardware and to use the information exchanged.
The notion of compatibility is defined in Directive (EU) 2019/770.
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(38) Point (m) of the first paragraph of Article 16 of Directive 2011/83/EU provides for an exception to the right of withdrawal in respect of digital content which is not supplied on a tangible medium if the consumer has given prior express consent to begin the performance before the expiry of the right of withdrawal period and acknowledged that he thereby loses his right of withdrawal.
Point (b) of Article 14(4) of that Directive provides for a contractual sanction when this requirement is not fulfilled by the trader, namely, the consumer does not have to pay for the digital content consumed.
The requirement to obtain the consumer’s prior express consent and acknowledgment is accordingly only relevant for digital content which is provided against the payment of the price.
It is therefore necessary to amend point (m) of the first paragraph of Article 16 to the effect that the requirement for traders to obtain the consumer’s prior express consent and acknowledgment only applies to contracts that place the consumer under an obligation to pay.
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(44) Article 14(4) of Directive 2011/83/EU stipulates the conditions under which, in the event of exercising the right of withdrawal, the consumer does not bear the cost for the performance of services, supply of public utilities and supply of digital content which is not supplied on a tangible medium.
When any of those conditions is met, the consumer does not have to pay the price of the service, public utilities or digital content received before the exercise of the right of withdrawal.
As regards digital content, one of those non-cumulative conditions, namely under point (b)(iii) of Article 14(4), is a failure to provide the confirmation of the contract, which includes confirmation of the consumer’s prior express consent to begin the performance of the contract before the expiry of the right of withdrawal period and acknowledgement that the right of withdrawal is lost as a result.
However, that condition is not included among the conditions for the loss of the right of withdrawal in point (m) of the first paragraph of Article 16 of that Directive, creating uncertainty as regards the possibility for consumers to invoke point (b)(iii) of Article 14(4) when the other two conditions provided for in point (b) of Article 14(4) are met and, as a result, the right of withdrawal is lost in accordance with point (m) of the first paragraph of Article 16.
The condition provided for in point (b)(iii) of Article 14(4) should therefore be added to point (m) of the first paragraph of Article 16 to enable the consumer to exercise the right of withdrawal when that condition is not met and accordingly claim the rights provided for in Article 14(4).
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