(19) The Directive should address problems across different categories of digital_content, digital_services, and their supply.
In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital_content or digital_service, this Directive should cover, inter alia, computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, and also digital_services which allow the creation of, processing of, accessing or storage of data in digital form, including software-as-a-service, such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media.
As there are numerous ways for digital_content or digital_services to be supplied, such as transmission on a tangible medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital_content or access to the use of social media, this Directive should apply independently of the medium used for the transmission of, or for giving access to, the digital_content or digital_service.
However, this Directive should not apply to internet access services.
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(24) Digital content or digital_services are often supplied also where the consumer does not pay a price but provides personal_data to the trader.
Such business models are used in different forms in a considerable part of the market.
While fully recognising that the protection of personal_data is a fundamental right and that therefore personal_data cannot be considered as a commodity, this Directive should ensure that consumers are, in the context of such business models, entitled to contractual remedies.
This Directive should, therefore, apply to contracts where the trader supplies, or undertakes to supply, digital_content or a digital_service to the consumer, and the consumer provides, or undertakes to provide, personal_data.
The personal_data could be provided to the trader either at the time when the contract is concluded or at a later time, such as when the consumer gives consent for the trader to use any personal_data that the consumer might upload or create with the use of the digital_content or digital_service.
Union law on the protection of personal_data provides for an exhaustive list of legal grounds for the lawful processing of personal_data.
This Directive should apply to any contract where the consumer provides or undertakes to provide personal_data to the trader.
For example, this Directive should apply where the consumer opens a social media account and provides a name and email address that are used for purposes other than solely supplying the digital_content or digital_service, or other than complying with legal requirements.
It should equally apply where the consumer gives consent for any material that constitutes personal_data, such as photographs or posts that the consumer uploads, to be processed by the trader for marketing purposes.
Member States should however remain free to determine whether the requirements for the formation, existence and validity of a contract under national law are fulfilled.
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(27) Given that this Directive should apply to contracts which have as their object the supply of digital_content or a digital_service to the consumer, it should not apply where the main subject matter of the contract is the provision of professional services, such as translation services, architectural services, legal services or other professional advice services, which are often performed personally by the trader, regardless of whether digital means are used by the trader in order to produce the output of the service or to deliver or transmit it to the consumer.
Similarly, this Directive should not apply to public services, such as social security services or public registers, where the digital means are only used for transmitting or communicating the service to the consumer.
This Directive should also not apply to authentic instruments and other notarial acts, regardless of whether they are performed, recorded, reproduced or transmitted by digital means.
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(57) Digital content or digital_services could also be supplied to consumers in a continuous manner over a period of time.
Continuous supply can include cases whereby the trader makes a digital_service available to consumers for a fixed or an indefinite period of time, such as a two-year cloud storage contract or an indefinite social media platform membership.
The distinctive element of this category is the fact that the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.
Therefore, it is justified that the trader, in such cases, should only be liable for a lack of conformity which appears during that period of time.
The element of continuous supply should not necessarily require a long-term supply.
Cases such as web-streaming of a video clip should be considered continuous supply over a period of time, regardless of the actual duration of the audio-visual file.
Cases where specific elements of the digital_content or digital_service are made available periodically or on several instances during the fixed duration of the contract, or for as long as the indefinite contract is in force, should also be considered a continuous supply over a period of time, for instance where the contract stipulates that a copy of anti-virus software can be used for a year and will be automatically updated on the first day of each month of this period, or that the trader will issue updates whenever new features of a digital game become available, and the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.
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