Key message
Suppliers of digital content should ensure that their terms and conditions and end user licences properly reflect the new rights and remedies under the Consumer Rights Act 2015 as many of these cannot legally be excluded.
What digital content does this affect?
It is defined as “data produced and supplied in digital form”. This includes apps, music, ringtones, films and tv, software, computer games and e-books.
The new rights mostly only apply to digital content that is “paid for” or which is supplied free with something that is paid for. Note that the Government is keeping this area under review and it is possible in future that this is extended to include digital content that is exchanged for something of value other than money – and this might include things such as personal data.
Who does this affect?
This is concerned with the supply of digital content from a “trader” to a “consumer”.
A trader is anyone acting for purposes relating to their trade, business, craft or profession. This obviously covers companies, but also government departments and local authorities and, in some cases, charities.
A consumer is an individual who is acting in their personal capacity, ie not on behalf of their business or employer etc.
What are the new rights for consumers?
These broadly bring digital content into line with existing laws relating to “goods”. The consumers’ new rights predominantly relate to the quality of the digital content, but also seek to ensure that they ultimately have the right to use that digital content by seeking to ensure that the supplier has the right to supply the digital content to the consumer. This is achieved by it being implied into the contract with the consumer that the supplier does have such a right. In essence this means that that if the supplier doesn’t own the content it must be appropriately licensed by the relevant third party.
The rights relating to quality include the original digital content as well as any modifications made to it by the supplier:
- Satisfactory Quality: This standard is based on the judgement of a “reasonable person” and takes into account relevant factors such as description and price. It is therefore likely that higher standards will be re required of more sophisticated and higher priced digital content.
- Fit for purpose: Where the consumer tells the supplier that the digital content is being bought for a particular purpose, even if it is not the usually intended purpose, then it will be implied that it is reasonably fit for that purpose.
- Match its description: The digital content must match any descriptions given, including in relation to compatibility and functionality.
- Not damaging to other digital content or device: Consumers will now have a remedy if the digital content has damaged other digital content or their device and if this would not have happened had the supplier used reasonable care and skill.
What remedies will consumers have?
If the digital content does not meet the quality requirements then the consumer will have a right for it to be repaired or replaced or, if that is not possible, will take an unreasonable amount of time or cause significant inconvenience, then the consumer will have a right to a reduction in price, potentially up to the full amount paid. The consumer will also have a right to a refund if the supplier did not have the rights to supply the digital content.
If the digital content damages the consumer’s other digital content or their device, and the supplier has not used reasonable skill and care to prevent this, then the supplier must repair that damage or provide financial compensation.
These statutory remedies are in addition to other remedies, such as any damages which may apply, but the consumer cannot recover more than once for the same loss.
How do I find out more?
For further information of any of the above issues, or to talk through how they may affect you or your business, please contact Stuart Barry.