In the second of our articles on the Consumer Rights Act 2015, we look at the new bespoke regime for “digital content” and give a high level overview of the core rights for consumers in respect of digital content and the remedies for breach of these rights.
Digital content is defined as data that is produced and supplied in digital form. The definition encompasses software, games, apps, e-books, ringtones and digital media such as films, tv and music and covers both content in tangible form and in intangible form (eg. music downloaded or streamed). The core consumer rights in the Act are largely the same for digital content as for goods as set out in our first article here. However, these rights only apply to digital content that is paid for with money or that is supplied free with other paid for goods or services.
- For all remedies, the consumer must be able to show there is fault. Digital content must comply with the requirements at the earlier of the time it reaches the consumer's device or the time it reaches a supplier with whom the consumer contracts for the delivery of the content eg. an ISP.
- Unlike the remedies for goods, a trader has more than one opportunity to repair or replace. This is in recognition of the nature of digital content and the likelihood of there always being a few "bugs".
- Digital content can be changed through the provision of updates but this should be made clear in the contract. Whilst generally updates will be of benefit to a consumer, it is worth noting that any right for a trader to unilaterally change the digital content may be judged as unfair.
- The time limit for a consumer to make a claim relating to an update is 6 years from the date the original digital content was supplied and not the update (unless this was supplied under a separate contract).
- A consumer has remedies where digital content (including free digital content) supplied under a contract causes damage to a device or other digital content belonging to a consumer and the damage is of the kind that would not have occurred if the trader had acted with reasonable skill and care. The consumer can require the trader to either repair the damage or provide compensation.
- If digital content is supplied in tangible form then the goods remedies may apply.
- A consumer has other remedies for breaches of other provisions of the Act and may also be entitled to other common law remedies for breach of the core requirements set out above such as a claim for damages, although a consumer will not be able to recover twice for the same loss.
- The above remedies are also separate and in addition to the 14 day cooling off period for a consumer who buys digital content at a distance or off-premises to cancel the contract and get a full refund without proving a defect or fault (subject to some exceptions).
For more information about the Consumer Rights Act 2015 or to find out more about how the Commercial & Technology team can help you please contact Sarah Williamson on [email protected] or 0118 952 7247.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.