(28) The market for number-independent interpersonal communications services, which do not connect with publicly assigned numbering resources, is rapidly evolving.
In recent years, the emergence of new digital_services which allow interpersonal communications over the internet, such as web-based email and online messaging services, has led more consumers to use such services.
For such reasons, it is necessary to provide effective consumer protection with respect to such services.
This Directive should therefore also apply to number-independent interpersonal communications services.
- = -
(44) Given that digital_content and digital_services are constantly developing, traders may agree with consumers to provide updates and features as they become available.
The conformity of the digital_content or digital_service should, therefore, also be assessed in relation to whether the digital_content or service is updated in the manner that has been stipulated in the contract.
Failure to supply updates that had been agreed to in the contract should be considered a lack of conformity of the digital_content or digital_service.
moreover, defective or incomplete updates should also be considered a lack of conformity of the digital_content or digital_service, given that that would mean that such updates are not performed in the manner stipulated in the contract.
- = -
(51) Many types of digital_content or digital_services are supplied continuously over a period of time, such as access to cloud services.
It is therefore necessary to ensure that the digital_content or digital_service is in conformity throughout the duration of the contract.
Short-term interruptions of the supply of digital_content or a digital_service should be treated as instances of lack of conformity where those interruptions are more than negligible or recur.
moreover, given the frequent improvement of digital_content and digital_services, in particular by updates, the version of digital_content or of a digital_service supplied to the consumer should be the most recent one available at the time of the conclusion of the contract, unless the parties have agreed otherwise.
- = -
(55) The trader should be liable to the consumer in the event of a lack of conformity of the digital_content or digital_service, and for any failure to supply the digital_content or digital_service.
As digital_content or digital_services can be supplied to consumers through one or more individual acts of supply or continuously over a period of time, it is appropriate that the relevant time for the purpose of establishing conformity of the digital_content or digital_service be determined in the light of those different types of supply.
- = -
(64) Given the diversity of digital_content and digital_services, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to digital_content or digital_services.
Such deadlines would not take account of such diversity and could be either too short or too long, depending on the case.
It is therefore more appropriate to require that digital_content and digital_services be brought into conformity within a reasonable time.
Such requirement should not prevent the parties from agreeing on a specific time for bringing the digital_content or digital_service into conformity.
The digital_content or digital_service should be brought into conformity free of any charge.
In particular, the consumer should not incur any costs associated with the development of an update for the digital_content or digital_service.
- = -
(71) The consumer should be entitled to retrieve the content within a reasonable time, without hindrance from the trader, in a commonly used machine-readable format and free of charge, with the exception of costs generated by the consumer's own digital_environment, for instance the costs of a network connection as those costs are not specifically linked to the retrieval of the content.
However, the obligation of the trader to make available such content should not apply where the content only has utility within the context of using the digital_content or digital_service, or relates only to the consumer's activity when using the digital_content or digital_service or has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts.
In such cases, the content does not have significant practical use or interest for the consumer while taking into account also the interests of the trader.
moreover, the obligation of the trader to make available to the consumer, upon termination of the contract, any content that is not personal_data and has been provided or created by the consumer should be without prejudice to the trader's right not to disclose certain content in accordance with applicable law.
- = -
(75) In addition to modifications aimed at maintaining conformity, the trader should be allowed under certain conditions to modify features of the digital_content or digital_service, provided that the contract gives a valid reason for such a modification.
Such valid reasons could encompass cases where the modification is necessary to adapt the digital_content or digital_service to a new technical environment or to an increased number of users or for other important operational reasons.
Such modifications are often to the advantage of the consumer as they improve the digital_content or digital_service.
Consequently, the parties to the contract should be able to include clauses in the contract which allow the trader to undertake modifications.
In order to balance consumer and business interests, such a possibility for the trader should be coupled with a right for the consumer to terminate the contract where such modifications negatively impact the use of or access to the digital_content or digital_service in more than only a minor manner.
The extent to which modifications negatively impact the use of or access to the digital_content or digital_service by the consumer should be objectively ascertained having regard to the nature and purpose of the digital_content or digital_service and to the quality, functionality, compatibility and other main features which are normal for digital_content or digital_services of the same type.
The rules provided for in this Directive concerning such updates, upgrades or similar modifications should however not concern situations where the parties conclude a new contract for the supply of the digital_content or digital_service, for instance as a consequence of distributing a new version of the digital_content or digital_service.
- = -
(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.
- = -
(77) Where a modification negatively impacts, in more than a minor manner, the access or use of the digital_content or digital_service by the consumer, the consumer should enjoy as a result of such a modification the right to terminate the contract free of any charge.
Alternatively, the trader can decide to enable the consumer to maintain access to the digital_content or digital_service at no additional cost, without the modification and in conformity, in which case the consumer should not be entitled to terminate the contract.
However, if the digital_content or digital_service that the trader enabled the consumer to maintain is no longer in conformity with the subjective and the objective requirements for conformity, the consumer should be able to rely on the remedies for a lack of conformity as provided for under this Directive.
Where the requirements for such a modification as laid down in this Directive are not satisfied and the modification results in a lack of conformity, the consumer's right to bring the digital_content or digital_service into conformity, have the price reduced or the contract terminated, as provided for under this Directive, should remain unaffected.
Similarly, where, subsequent to a modification, a lack of conformity of the digital_content or digital_service that has not been caused by the modification arises, the consumer should continue to be entitled to rely on remedies as provided for under this Directive for the lack of conformity in relation to this digital_content or digital_service.
- = -
(84) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (18), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments.
With regard to this Directive, the legislator considers the transmission of such documents to be justified.
- = -