BGB 2.0: A new purchase right for digital content

According to the plans of the European legislator, the sale of digital content to consumers shall soon be fundamentally revised and regulated by a new directive (“Directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content”). In his lecture on “Civil law 2.0: The Digital Content Directive” on our conference “More Than Just a Game” Dr Axel von Walter, Partner at BEITEN BURKHARDT Munich, presented the key aspects of the proposed directive to the audience.

The scope of application of the proposed directive shall comprise all contracts between traders and consumers on the provision of digital content (data in digital form, including software, video, audio and e-books) and the provision of digital services (including Cloud Computing, Social Media). Hence, the directive shall also cover providers of online and mobile games. Prerequisite for the application of the directive is that digital content is provided for a consideration of the consumer. Such consideration can on the one hand be a fee, yet on the other hand, and this is new, it could be data (e.g. the consumer‘s personal data) that are treated as non-monetary consideration. The proposal for a directive is aimed at a maximum harmonisation, i.e. in their national legal systems the EU member states may not provide for any regulations neither more beneficial nor more hostile to the consumer in fields falling within the scope of the directive.

In his lecture Dr von Walter addressed some selected regulations, including the regulations for the provision of digital content, defects, liability and responsibility, the burden of presentation and proof, guarantee, rescission and its consequences.

In relation to defect-related rights the requirements that must be met so that digital content is deemed to be compliant with the contract (Art. 6), are very similar to the German provisions under the Law on the Sale of Goods. So, digital content is, inter alia, deemed to be compliant with the contract if such content has the contractually agreed characteristics such as, for instance, a specific scope of functions, a defined duration or the compatibility with other products or content, or if it is suited for the purposes for which such content is normally used. An important aspect in this context is the burden of presentation and proof: According to the proposal for a directive, such burden generally rests with the provider (Art. 9), i.e. if the consumer claims that the content or the service was defective, it is for the provider to provide evidence to the contrary. Warranty rights are also structured similarly to the German Law on the Sale of Goods (Art. 12 und 13). To start with, the consumer has a right to cure and then, in the event of failure of such cure, a right of rescission or reduction. Should the provider provide the content not at all, the consumer can rescind the contract immediately (Art. 11).

The proposal for a directive also provides for special regulations for contracts with a duration exceeding 12 months (Art. 16). The consumer may terminate such contracts after the expiration of the first 12 months at any time. These special regulations could also affect game providers if those, for instance, offer “Games as a Service”, and also on their pricing models.

With a view to the expected adoption of the directive by the EU Parliament in 2019, games companies should, thus, review both their contracts with consumers and their business models with regard to the envisaged regulations.

If you have any questions, please feel free to contact Timo Conraths.