keyboard_tab Contratti digitali 2019/0770 EN

(25) Where digital_content and digital_services are not supplied in exchange for a price, this Directive should not apply to situations where the trader collects personal_data exclusively to supply digital_content or a digital_service, or for the sole purpose of meeting legal requirements.

  Such situations can include, for instance, cases where the registration of the consumer is required by applicable laws for security and identification purposes.

  This Directive 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 this Directive to such situations, or to otherwise regulate such situations, which are excluded from the scope of this Directive.

(42) The digital_content or digital_service should comply with the requirements agreed between the trader and the consumer in the contract.

  In particular, it should comply with the description, quantity, for example the number of music files that can be accessed, quality, for example the picture resolution, language and version agreed in the contract.

  It should also possess the security, functionality, compatibility, interoperability and other features, as required by the contract.

  The requirements of the contract should include those resulting from the pre-contractual information which, in accordance with Directive 2011/83/EU, forms an integral part of the contract.

  Those requirements could also be set out in a service level agreement, where, under the applicable national law, such type of agreement forms part of the contractual relationship between the consumer and the trader.

(43) 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.

(47) For the period of time that the consumer would reasonably expect, the trader should provide the consumer with updates, including security updates, in order to keep the digital_content or digital_service in conformity and secure.

  For instance, as regards digital_content or digital_services, the purpose of which is limited in time, the obligation to provide updates should be limited to that time, while for other types of digital_content or digital_service the period during which updates should be provided to the consumer could be equal to the liability period for lack of conformity or could extend beyond that period, which might be the case particularly with regard to security updates.

  The consumer should remain free to choose whether to install the updates provided.

  Where the consumer decides not to install the updates, the consumer should, however, not expect the digital_content or digital_service to remain in conformity.

  The trader should inform the consumer that the consumer's decision not to install updates which are necessary for keeping the digital_content or digital_service in conformity, including security updates, will affect the trader's liability for conformity of those features of the digital_content or digital_service which the relevant updates are supposed to maintain in conformity.

  This Directive should not affect obligations to provide security updates laid down in Union law or in national law.

(49) In order to ensure sufficient flexibility, it should be possible for the parties to deviate from the objective requirements for conformity.

  Such a deviation should only be possible if the consumer was specifically informed about it and if the consumer accepts it separately from other statements or agreements and by way of active and unequivocal conduct.

  Both conditions could, for instance, be fulfilled by ticking a box, pressing a button or activating a similar function.

(50) When applying the rules of this Directive, traders should make use of standards, open technical specifications, good practices and codes of conduct, including in relation to the commonly used and machine-readable format for retrieving the content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service, and including on the security of information systems and digital_environments, whether established at international level, Union level or at the level of a specific industry sector.

  In this context, the Commission could call for the development of international and Union standards and the drawing up of a code of conduct by trade associations and other representative organisations that could support the uniform implementation of this Directive.

(53) Restrictions of the consumer's use of the digital_content or digital_service in accordance with this Directive could result from limitations imposed by the holder of intellectual property rights in accordance with intellectual property law.

  Such restrictions can arise from the end-user license agreement under which the digital_content or digital_service is supplied to the consumer.

  This can be the case when, for instance, an end-user licence agreement prohibits the consumer from making use of certain features related to the functionality of the digital_content or digital_service.

  Such a restriction could render the digital_content or digital_service in breach of the objective requirements for conformity laid down in this Directive, if it concerned features which are usually found in digital_content or digital_services of the same type and which the consumer can reasonably expect.

  In such cases, the consumer should be able to claim the remedies provided for in this Directive for the lack of conformity against the trader who supplied the digital_content or digital_service.

  The trader should only be able to avoid such liability by fulfilling the conditions for derogating from the objective requirements for conformity as laid down in this Directive, namely only if the trader specifically informs the consumer before the conclusion of the contract that a particular characteristic of the digital_content or digital_service deviates from the objective requirements for conformity and the consumer has expressly and separately accepted that deviation.

(59) Due to the specific nature and high complexity of digital_content and digital_services, as well as the trader's better knowledge and access to know-how, technical information and high-tech assistance, the trader is likely to be in a better position than the consumer to know why the digital_content or digital_service is not supplied or is not in conformity.

  The trader is also likely to be in a better position to assess whether the failure to supply or the lack of conformity is due to the in compatibility of the consumer's digital_environment with the technical requirements for the digital_content or digital_service.

  Therefore in the event of a dispute, while it is for the consumer to provide evidence that the digital_content or digital_service is not in conformity, the consumer should not have to prove that the lack of conformity existed at the time of supply of the digital_content or digital_service or, in the event of continuous supply, during the duration of the contract.

(60) Without prejudice to the fundamental right to the protection of private life, including confidentiality of communications, and to the protection of personal_data of the consumer, the consumer should cooperate with the trader in order for the trader to ascertain whether the cause of the lack of conformity lies in the consumer's digital_environment using the technically available means which are least intrusive for the consumer.

  This can often be done for instance by providing the trader with automatically generated incident reports or with details of the consumer's internet connection.

  Only in exceptional and duly justified circumstances where, despite the best use of all other means, there is no other way possible, consumers may need to allow virtual access to their digital_environment.

  However, where the consumer does not cooperate with the trader and the consumer had been informed of the consequences of non-cooperation, it should be for the consumer to prove not only that the digital_content or digital_service is not in conformity, but also that the digital_content or digital_service was not in conformity at the time of supply of the digital_content or digital_service where the contract provides for a single act of supply or a series of individual acts of supply or, where the contract provides for continuous supply over a period of time, for the duration of the contract.

(76) Consumers should be informed of modifications in a clear and comprehensible manner.

  Where a modification negatively impacts, in more than a minor manner, the access to or use of digital_content or a digital_service by the consumer, the consumer should be informed in a way that allows the information to be stored on a durable_medium.

  A durable_medium should enable the consumer to store the information for as long as is necessary to protect the interests of the consumer arising from the consumer's relationship with the trader.

  Such media should include, in particular, paper, DVDs, CDs, USB sticks, memory cards or hard disks as well as emails.