Suppliers of digital content have at last been issued with guidance on the EU Consumer Rights Directive of last year.
Given that most businesses supplying online content have already used appreciable resources to comply with the Directive by June 13th last year, the cart seems to have arrived before the horse. But the guidance is a welcome development even so. Writing in TechRadar, media legal eagles Gregor Pryor and Nick Breen of the law firm Reed Smith LLP have set out the main points:
- Content providers will need to ensure that their they prominently display clear information about the chief characteristics of the goods, the contract duration, conditions for termination and the total price before consumers place their orders. That means, at a minimum, displaying it on the checkout page.
- Purchase buttons must contain unambiguous payment obligations (e.g. “conform purchase”, “buy now” or “pay now). Terms like “confirm” or “order now” won’t pass muster.
- Digital content providers will be expected to send consumers a conformation email “immediately before” he or she begins to stream or download the content (some providers are going to find this a technical challenge).
- Even though there’s a difference between “services” and “contracts”, the guidance implies that subscription services (like music or VOD movie subscriptions) should be treated as “contracts for the supply of digital content.”
- Before making purchased digital content available via stream or download, providers must obtain the clear consent of consumers to waive their 14-day right to cancellation as soon as they start accessing the content.
The last point may be viewed by many providers as involving intimidating language to consumers. The wording suggested in the Guidance reads:
“I hereby consent to immediate performance of the contract and acknowledge that I will lose my right of withdrawal from the contract once the download or streaming of the digital content has begun”.
Content providers as a general rule don’t want to antagonise their customers and may prefer the use of less intimidating language. But the Directive is pretty inflexible on this point, so whatever the wording, the two core requirements will need to be covered (express consent and loss of cancellation rights upon accessing the content).