Activities of Julia REDA related to 2015/0287(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content PDF (1 MB) DOC (200 KB)
Amendments (98)
Amendment 111 #
Proposal for a directive
Recital 5
Recital 5
(5) In order to remedy these problems, both businesses and consumers should be able to rely on fully harmonised rules for the supply of digital content setting out Union- wide contractual rights which are essential for this type of transactions.
Amendment 121 #
Proposal for a directive
Recital 6
Recital 6
(6) Fully hHarmonised consumer contract law rules in all Member States will make it easier for businesses to offer digital content cross-border. They will have a stable contract law environment when selling online and otherwise at a distance to other Member States. Fully hHarmonised rules specific for digital content throughout the EU will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content. They will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content.
Amendment 129 #
Proposal for a directive
Recital 7
Recital 7
(7) Consumers will benefit from fully harmonised rights for digital content at a high level of protection. They will have clear rights when they receive or access digital content from anywhere in the EU. This will increase their confidence in buying digital content. This will also contribute to reducing the detriment consumers currently suffer, since there will be a set of clear rights that will enable them to address problems they face with digital content.
Amendment 135 #
Proposal for a directive
Recital 8
Recital 8
(8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level. It should include therefore rules on conformity of the digital content, remedies available to consumers in cases of lack of conformity of digital content with the contract and certain modalities for the exercise of those remedies. This Directive should also harmonise certain aspects concerning the right to terminate a long term contract, specific types of unfair contract terms relating to digital content and digital services as well as certain aspects concerning the modification of the digital content.
Amendment 146 #
Proposal for a directive
Recital 9
Recital 9
(9) By fully harmonising all requirementsproviding a minimum level of consumer protection related to the topics regulated by this Directive, it precludes Member States, within its scope of application, from providing any further formal or substantive requirements of the consumer, such as a period during which the lack of conformity has to become apparent, an obligation for the consumer to notify the supplier of a lack of conformity within a specific period or an obligation for the consumer to pay for the use of the digital content until the moment of termination because of a lack of conformity with the contract.
Amendment 153 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10 a) This Directive should not affect provisions of national laws governing the conditions under which a contract for the supply of digital content or digital services is considered to be linked with or ancillary to another contract the consumer has concluded with the supplier or another trader, and the effect this has on either contract or on the remedies to be exercised under either contract. In order to ensure consistency between the nature of contracts applicable to the provision of digital content, whether it is supplied on a durable medium, embedded or not, all contracts for the provision of digital content that are not long-term contracts such as streaming services should be treated as sales contracts.
Amendment 155 #
Proposal for a directive
Recital 11
Recital 11
(11) The Directive should address problems across different categories of digital content and its supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content, this notion as used in this Directive should be broader than in Directive 2011/83/EU of the European Parliamentdigital services and of the Council.30 In particular it should cover services which allow the creation, processing or storage of datair supply. While there are numerous ways for digital content or digital services to be supplied, such as transmission on a durable 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 to all digital content independently of the medium used for its transmission. Differentiating between different categories in this technologically fast changing market is not desirable because it would hardly be possible to avoid discriminations between suppliers. A level- playing field between suppliers of different categories of digital content should be ensured. However this Directive should not apply to digital content which is embedded in goods in such a way that it operates as an integral part of the goods and its functions are subordinate to the main functionalities of the goods. _________________ 30OJ L 304, 22.11.2011, p.64.
Amendment 170 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for suppliers of digital content offered on a durable medium, in relation to conformity requirements and remedies available to consumers for non-conformity, this Directive should apply to goods such as DVDs and CDs, incorporating digital content in such a way that the goods function only as a carrier of the digital content. In order to ensure the application of a uniform legal framework to the sale of content on a durable medium and the provision of digital content in other forms, all contracts for the supply of digital content that are not long-term contracts such as streaming services should be treated as sales contracts. The Directive should apply to the digital content supplied on a durable medium, independently whether it is sold at a distance or in face- to-face situations, so as to avoid fragmentation between the different distribution channels. The Directive 2011/83 should continue to apply to those goods, including to obligations related to the delivery of goods, remedies in case of the failure to deliver and the nature of the contract under which those goods are supplied. The Directive is also without prejudice to the distribution right applicable to these goods under copyright law.
Amendment 188 #
Proposal for a directive
Recital 14
Recital 14
(14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, this Directive should apply onlso apply to contracts where the supplier requests and the consumer actively provides data, such as name and e-mail address or photos,consumer provides personal data or any other data that may be used directly or indirectly toby the supplier for example through individual registration or on the basis of awith a profit-making interest. This should also include contracts in which the consumer allows access to consumers' photos, and processing of his or her personal data by the supplier. This Directive should not apply to situations where the supplier collects data necessarythat are exclusively used by the supplier in order for the digital content to function in conformity with the contract, including software updating, for example geographical location where necessary for a mobile application to function properly or bug reports in order to identify defects in the software, or for the sole purpose of meeting legal requirements, for instance where the registration of the consumer is required for security and identification purposes by applicable laws. This Directive should also not apply to situations where the supplier collects information, including personal data, such as the IP address, or other automatically generated information such as information collected and transmitted by a cookie, without the consumer actively supplying it, even if the consumer accepts the cookie. It should also not apply to situations where the consumer is exposed to advertisements exclusively in order to gain access to digital content.
Amendment 199 #
Proposal for a directive
Recital 15
Recital 15
(15) Content generated by consumers should be treated on the same basis as any other digital content that the consumer provides or stores throughout the period of duration of the contract such as music and video files, pictures, games or applications, unless this content is co-created with other consumers who should be allowed to continue using the service. Content generated by consumers comprises a wide range of examples including digital images, video and audio files, blogs, discussion forums, text-based collaboration formats, posts, chats, tweets, logs, podcasting, content created on mobile devices, content created in the context of online virtual environments, ratings and collections of links referring to online content.
Amendment 206 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure a common set of rights for consumers and a level playing field for business, consumers should have the same remedies for digital content which is not in conformity with the contract irrespective of the way the content has been developed. Consequently the Directive should apply to contracts for the development of digital content tailor made to the specific requirements of the consumer including tailor made software. This Directive should also apply to the supply of visual modelling files required in the context of 3D printing. However this Directive should not regulate goods produced with the use of 3D printing technology or the damage caused to them if these products do not include any elements of embedded digital content themselves. .
Amendment 212 #
Proposal for a directive
Recital 18
Recital 18
(18) Contracts may include general terms and conditions of the supplier that need to be accepted by the consumer. For some digital content, suppliers often describe the service and measurable service targets in a service level agreement. These service level agreements are generally appended to the main contract and form an important component of the contractual relationship between the supplier and the consumer. They should be covered by the definition of a contract under this Directive, and should thus comply with the rules laid down therein. In cases where consent to the processing of personal data is given as a counter-performance other than money, the contract should contain the information about the processing prescribed by Regulation (EU) 2016/679 of the European Parliament and of the Council1, but that information should be clearly distinguishable from other elements of the contract. In addition, easily understandable icons should illustrate the main elements of the processing of personal data.
Amendment 218 #
Proposal for a directive
Recital 21
Recital 21
(21) This Directive should not deal with copyright and other intellectual property related aspects of the supply of digital content. Therefore it should be without prejudice to any rights and obligations according to copyright law and other intellectual property laws. Consequently, while the provision of content under a free or open licence, such as free and open source software, is treated as a contract in several jurisdictions, the adherence to the terms of the licence, such as the condition to distribute any copies or modifications of the content under the same licence terms, should not be considered as a counter-performance in the meaning of this Directive, because these conditions are merely meant to guarantee the freedom to share and modify content to all subsequent users, without constituting a specific benefit to the supplier. Free or open licences should therefore not give rise to obligations under this Directive, even if they can be considered to be a contract.
Amendment 222 #
Proposal for a directive
Recital 22
Recital 22
(22) The protection of individuals with regard to the processing of personal data is governed by Directive 95/46/EC of the European Parliament and of the Councilursuit of activities falling within the scope of this Directive involves the processing of personal data. This Directive is without prejudice to the rules of Union law applicable to the processing of personal data within the Union, in particular Regulation (EU) 2016/67931 and by Directive 2002/58/EC of the European Parliament and of the Council32, which are fully applicable in the context of contracts for the supply of digital content. Those Directives already establish a legal framework in the field of personal data in the Uniongovern the processing of personal data carried out in the Member States under the supervision of the Member States' competent authorities, in particular the public independent authorities designated by the Member States. Those legal acts already establish a legal framework in the field of personal data in the Union and are fully applicable in the context of contracts for the supply of digital content. The implementation and application of this Directive should be made in full compliance with that legal framework. _________________ 31 OJ L 281, 23/11/1995, p. 31 - 50) [to be replaced by the General Data Protection Regulation, once adopted]. 32119, 4.5.2016, p. 1-88. 32 OJ L 201, 31.7.2002, p. 37–47. OJ L 201, 31.7.2002, p. 37–47.
Amendment 234 #
Proposal for a directive
Recital 24
Recital 24
Amendment 237 #
Proposal for a directive
Recital 25
Recital 25
(25) In cases where the contract does not stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content with the contract, it is necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases tThe conformity with the contract should be assessed considering the purpose for which digital content of the same description would normally be used.
Amendment 241 #
Proposal for a directive
Recital 26
Recital 26
(26) Due to its nature digital content needs to interact with other digital equipment to function properly; interoperability should therefore form a part of the conformity criteria. In particular it needs to interact with hardware including processor speed and graphics card features and software including a specific version of the operating system or specific multi- media player. The notion of functionality should refer to the ways in which digital content can be used; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or regional coding. Technical restrictions which limit the uses of digital content permitted under Directive 2001/29/EC, Directive 96/9/EC, Directive 2009/24/EC or Directive 2012/28/EU should be deemed to be a lack of functionality.
Amendment 264 #
Proposal for a directive
Recital 33
Recital 33
(33) Without prejudice to the fundamental rights to the protection of private life, including confidentiality of communications, and the protection of personal data of the consumer, the consumer should cooperate with the supplier in order to allow the supplier to ascertain the consumer's digital environment with the use of the least intrusive means which are at the disposal of both parties in the circumstances. This may often be done for instance by providing the supplier with automatically generated incident reports or details of the consumer's internet connection. The provision of this information should not be treated as a counter-performance within this Directive. Only in exceptional and duly justified circumstances where with the best use of all other means there is no other way possible, this may also be done by allowing virtual access to the consumer's digital environment. However, where the consumer does not cooperate with the supplier, it should be for the consumer to prove that the digital content is not in conformity with the contract.
Amendment 278 #
Proposal for a directive
Recital 35
Recital 35
(35) A failure of the supplier to supply the digital content to the consumer in accordance with the contract is a serious breach of the main contractual obligation of the supplier, which should allow the consumer to immediately terminate the contract. Where the supplier has inor non- conformity of the digital content or digitially not failed to supply the digital content, interruptions of the supply making the digital content not available or accessible to the consumer over a short period of time should be treated as non-conformity with the contract, and not a failure to supply. In particular, t service with the contract should allow the consumer to immediately terminate the contract. The requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply.
Amendment 285 #
Proposal for a directive
Recital 36
Recital 36
(36) In the case of non-conformity with the contract, consumers should as a first step be entitled tohave a free choice between haveing the digital content brought into conformity with the contract, a replacement, a price reduction or termination of the contract. Depending on technical characteristics of the digital content, the supplier may select a specific way of bringing the digital content to conformity with the contract, for example by issuing updates or requiring the consumer to access a new copy of the digital content. Given the diversity of digital content, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content. Such deadlines may not capture this diversity and be either too short or too long, depending on the case. It is therefore more appropriate to refer to reasonable deadlines. The digital content should be brought into conformity with the contract within a reasonable time and free of any costs; in particular the consumer should not incur any costs associated with the development of an update for the digital content.
Amendment 299 #
Proposal for a directive
Recital 37
Recital 37
(37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to haveWhere the consumer terminates the contract, terminated should be limited tohe supplier should reimburse the price paid by those cases where for instance bringing the digital content to conformity is not possible and the non-conformity impairs the main performance features of the digital content. Where the consumer terminates theonsumer or, where the digital content is supplied not in exchange for a price but against access to data provided by the consumer, as a countract, the supplier should reimburse the price paid by the consumer or, whereer- performance for the digital content is supplied not in exchange for data prioduced but against access to data provided byy the consumer during the duration of the consumertract, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to access it after termination of the contract. Fulfilling the obligation to refrain from using data should mean in the case when the counter- performance consists of personal data, that the supplier should take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. If personal data protection techniques, such as pseudonymisation, as prescribed in Regulation (EU) 2016/679, are used by the supplier, only after the request made by the consumer, the supplier should refrain from using these data. Without prejudice to obligations of a controller under Directive 95/46/ECRegulation (EU) 2016/679 the supplier should not be obliged to undertake any further steps in relation to data which the supplier has lawfully provided to third parties in the course of the duration of the contract for the supply of the digital content.
Amendment 304 #
Proposal for a directive
Recital 38
Recital 38
(38) Upon termination the supplier should also refrain from using the content generated by the consumer. However, in those cases where more than one consumer generated particular content, the supplier is entitled to continue to use the content generated by the consumer where those other consumers make use of it. For example, content provided by a consumer under a free licence to a collaborative project should be free to be re-used under the same licence terms under which it was originally provided by the consumer also after a contract was terminated. The consumer should nevertheless be entitled to retrieve such content upon termination of the contract.
Amendment 337 #
Proposal for a directive
Recital 44
Recital 44
(44) The principle of the supplier's liability for damages is an essential element of the contracts for supply of digital content. In order to increase consumers' trust in digital content this principle should thus be regulated at Union level to ensure that consumers do not suffer a detriment if their hardware or software is damaged by digital content which is not in conformity with the contract. Therefore, consumers should be entitled to a compensation for damages caused to the consumer's digital environment by a lack of conformity with the contract or a failure to supply the digital content. However, it should be for Member States to lay down the detailed conditions for the exercise of the right to damages while taking into account that discounts on prices for future supplies of the digital content, especially when offered by suppliers as an exclusive compensation for losses, do not necessarily put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract. It should be possible for Member States, when laying down the rules in that regard, to provide for a reduced or increased degree of liability for damages in order to differentiate between suppliers that have done everything in their power to limit the possibility of damage, for example by observing industry codes of best practice, security baselines or international standards, and those that have been negligent in this respect.
Amendment 353 #
Proposal for a directive
Recital 46
Recital 46
(46) Competition is an important element for a well-functioning digital single market. In order to stimulate such a competition, consumers should be enabled to respond to competitive offers and to switch between suppliers. In order to make this work in practice, they should be able to do so without being hindered by legal, technical or practical obstacles, including contractual conditions or lack of means for retrieving all data uploaded by the consumer, produced by the consumer with the use of the digital content or generated through the consumer's use of the digital content. However, it is also important to protect existing investments and the trust in concluded contracts. Therefore consumers should be given the right to terminate long- term contracts under certain balanced conditions. This does not preclude that consumer contracts may be concluded for longer contractual periods. However, the consumer should be entitled to terminate any contractual relation that altogether lasts for a period longer than 126 months. In order to prevent any circumvention of this right it should cover any contract which results in the consumer being bound by the contract for more than 126 months, irrespective of whether the contract is of indeterminate duration or is extended automatically or following a subsequent agreement by the parties.
Amendment 354 #
Proposal for a directive
Recital 47
Recital 47
(47) The lack of conformity with the contract of the final digital content as supplied to the consumer is often due to one of the financial transactions in a chain, from the original designer to the final supplier. While the final supplier should be liable towards the consumer in case of lack of conformity with the contract between these two parties, it is important to ensure that the supplier has appropriate rights vis- a-vis different members of the chain of financial transactions in order to be able to cover his liability towards the consumer. These rights should be strictly limited to financial transactions and not extend to situations where e.g. the supplier re-uses third-party free software that the supplier did not pay for. However, it should be for the applicable national law to identify the members of the chains of financial transactions against which the final supplier can turn and the modalities and conditions of such actions.
Amendment 357 #
Proposal for a directive
Recital 47 a (new)
Recital 47 a (new)
(47 a) The Directive does not aim to introduce a legal framework for Free Software licenses, if Free Software is part of the provided digital content, nor does it aim to create an obligation onto a developer only because it has publicly made the software available under a Free Software license.
Amendment 381 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b
Article 2 – paragraph 1 – point 1 – point b
Amendment 386 #
Amendment 390 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
1 a. 'digital service' means (a) a service allowing the creation, processing or storage of data in digital form, where such data is provided by the consumer, and (b) a service allowing sharing of and any other interaction with data in digital form provided by other users of the service.
Amendment 399 #
Proposal for a directive
Article 2 – paragraph 1 – point 2 a (new)
Article 2 – paragraph 1 – point 2 a (new)
2 a. 'embedded digital content' means pre-installed digital content which operates as an integral part of the goods or which is necessary for the conformity of the good with the contract;
Amendment 405 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
4. 'consumer' means any natural person who in contracts covered by this Directive, is acting for purposes which are primarily outside that person's trade, business, craft, or profession;
Amendment 407 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
5. 'damages' means a sum of money to which consumers may be entitled as compensation for economic or pecuniary damage to their digital environment;
Amendment 417 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6 a. 'personal data' means personal data as defined by point (1) of article 4 of Regulation (EU) 2016/679;
Amendment 423 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
8. 'digital environment' means hardware, software, digital content and any network connection to the extent that they are within the control of the user;
Amendment 442 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content or a digital service to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter- performance other than money in the form ofby making available his or her personal data or any other data insofar as this is possible in accordance with Regulation (EU) 2016/679 where such data is processed with a profit-making interest. The contract shall explicitly indicate which data are exchanged for the content supplied.
Amendment 460 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. Where a contract is concluded for the provision of digital content, this shall be considered as a sales contract.
Amendment 477 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. This Directive shall not apply to digital content provided against counter- performance other than money to the extent the supplier requests the consumer to provide personal data the processing of which is strictly necessary for the performance of the contract or for meeting legal requirements and the supplier does not further process them in a way incompatible with this purpose. It shall equally not apply to any other data the supplier requests the consumer to provide for the purpose of ensuring that the digital content is in conformity with the contract or of meeting legal requirements, and the supplier does not useprocess that data for commercialany other profit-making purposes.
Amendment 489 #
Proposal for a directive
Article 3 – paragraph 5 – point e a (new)
Article 3 – paragraph 5 – point e a (new)
(e a) the provision of digital content under a free or open licence insofar as no contractual relations and obligations exist beyond the adherence to the terms of the licence.
Amendment 503 #
Proposal for a directive
Article 3 – paragraph 8
Article 3 – paragraph 8
8. This Directive is without prejudice toNo provision of this Directive or of any act transposing it into national law shall in any way reduce or undermine the protection of individuals with regard to the processing of personal data as provided for in Regulation (EU) 2016/679 and in Directive 2002/58/EC.
Amendment 512 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Member States shall notmay maintain or introduce more stringent provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a differenthigher level of consumer protection.
Amendment 548 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. The contract shall include all relevant characteristics for the assessment of the conformity of the digital content or digital service, as well as all relevant information regarding the processing of personal data in compliance with the obligation under Regulation (EU) 2016/679. In order to conform with the contract, the digital content shall, where relevant:
Amendment 561 #
Proposal for a directive
Article 6 – paragraph 1 – point b a (new)
Article 6 – paragraph 1 – point b a (new)
(b a) be fit for the purposes for which digital content of the same description would normally be used and shall possess the qualities including its functionality, interoperability and other performance features such as accessibility, continuity and security, which consumers may reasonably expect, taking into account: (1) consumers' legitimate expectations (2) any existing international or European technical standards or, in the absence of such technical standards, applicable industry codes of conduct and good practices; and (3) any existing best practices relating to the security of information systems and digital environments (4) any public statement made by or on behalf of the supplier or other persons in earlier links of the chain of transactions unless the supplier shows that (i) he was not, and could not reasonably have been, aware of the statement in question; (ii) by the time of conclusion of the contract the statement had been corrected and the consumer made explicity aware by the trader of this correction; (iii) the decision to acquire the digital content could not have been influenced by the statement.
Amendment 577 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
Amendment 579 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
Amendment 581 #
Proposal for a directive
Article 6 – paragraph 2 – point c – point i
Article 6 – paragraph 2 – point c – point i
Amendment 582 #
Proposal for a directive
Article 6 – paragraph 2 – point c – point ii
Article 6 – paragraph 2 – point c – point ii
Amendment 583 #
Proposal for a directive
Article 6 – paragraph 2 – point c – point iii
Article 6 – paragraph 2 – point c – point iii
Amendment 585 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Where the contract stipulates that the digital content or digital service shall be supplied over a period of time, the digital content or digital service including where necessary, security updates to be provided by the supplier, shall be in conformity with the contract throughout the duration of that period.
Amendment 591 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Unless otherwise agreed, digital content or digital service shall be supplied in conformity with the most recent version of the digital content or digital service which was available at the time of the conclusion of the contract.
Amendment 593 #
Proposal for a directive
Article 6 – paragraph 5
Article 6 – paragraph 5
5. In order to conform with the contract the digital content or digital service must also meet the requirements of Articles 7 and 8 and respect the principle data protection by design and default as set out in Article 25 of Regulation (EU) 2016/679.
Amendment 611 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
(b) the digital content was intended to be integrated by the consumer and the incorrect integration was due to shortcomings in the integration instructions where those instructions were supplied in accordance with point (c) of Article 6(1) or should have been supplied in accordance with Article 6(21).
Amendment 630 #
Proposal for a directive
Article 8 – paragraph 2 a (new)
Article 8 – paragraph 2 a (new)
2 a. Any failure by the supplier to ensure that such digital content is free of any right of a third party cannot lead to termination of the contract if the consumer has not consented to such termination.
Amendment 649 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Paragraph 1 shall not apply where the supplier shows that the digital environment of the consumer is not compatible with interoperability and other technical requirements of the digital content and where the supplier informed the consumer of such requirements before the conclusion of the contract in an easily understandable manner.
Amendment 657 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The consumer shall cooperate with the supplier to the extent possible and necessary to determine the consumer's digital environment. The obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer. Where the consumer fails to cooperate, the burden of proof with respect to the non-conformity with the contract shall be on the consumer. The consumer may choose not to give consent where the supplier requests access to private or personal information and communication.
Amendment 662 #
Proposal for a directive
Article 10 – paragraph 1 – introductory part
Article 10 – paragraph 1 – introductory part
1. The supplier shall be liable to the consumer for:
Amendment 674 #
Proposal for a directive
Article 10 – paragraph 1 – point b a (new)
Article 10 – paragraph 1 – point b a (new)
(b a) any lack of adherence to existing best practices relating to the security of information systems and digital environments which was known to the supplier or could reasonably have been known to it according to best practices relating to the security of information systems and digital environments.
Amendment 681 #
(c a) faulty software which causes economic or pecuniary damage.
Amendment 682 #
Proposal for a directive
Article 10 – paragraph 1 – subparagraph 1 (new)
Article 10 – paragraph 1 – subparagraph 1 (new)
2. It should be possible for Member States, when laying down the rules in that regard, to provide for a reduced or increased degree of liability for damages in order to differentiate between suppliers that have done everything in their power to limit the possibility of damage, for example by observing industry codes of best practice, security baselines or international standards, and those that have been negligent in this respect.
Amendment 687 #
Proposal for a directive
Article 11
Article 11
Amendment 701 #
Proposal for a directive
Article 12 – title
Article 12 – title
Remedies for the failure to supply or the lack of conformity with the contract
Amendment 703 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
Amendment 710 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
Amendment 713 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point a
Article 12 – paragraph 1 – subparagraph 2 – point a
Amendment 719 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point b
Article 12 – paragraph 1 – subparagraph 2 – point b
Amendment 725 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. TIf the consumer has chosen to have the digital content brought into conformity, the supplier shall bring the digital content in conformity with the contract pursuant to paragraph 1 within a reasonable time from the time the supplier has been informed by the consumer about the lack of conformity with the contract and without any significant inconvenience to the consumer, taking account of the nature of digital content and the purpose for which the consumer required this digital content. Where this does not happen, the consumer may choose another remedy.
Amendment 734 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 738 #
Proposal for a directive
Article 12 – paragraph 3 – point a
Article 12 – paragraph 3 – point a
Amendment 741 #
Proposal for a directive
Article 12 – paragraph 3 – point b
Article 12 – paragraph 3 – point b
Amendment 743 #
Proposal for a directive
Article 12 – paragraph 3 – point c
Article 12 – paragraph 3 – point c
Amendment 748 #
Proposal for a directive
Article 12 – paragraph 3 – point d
Article 12 – paragraph 3 – point d
Amendment 753 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
4. TWhere the consumer choses a price reduction, this reduction in price shall be proportionate to the decrease in the value of the digital content which was received by the consumer compared to the value of the digital content that is in conformity with the contract.
Amendment 756 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
Amendment 768 #
Proposal for a directive
Article 12 a (new)
Article 12 a (new)
Article 12 a Remedies for the lack of security In the case of a lack of security, the consumer shall be entitled to have the digital content brought into conformity with the contract free of charge.
Amendment 790 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the supplier shall take all measures which could be expected in order to refrain from the use of the counter- perfpersonal data orm ancey other than moneydata which the consumer has providedmade available instead of payment with money in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer with the exception of the content which has been generatproduced jointly by the consumer and others who continue to make use of the content; The supplier shall refrain from processing personal data for the mere purpose of allowing non- personal data and content to be linked to the consumer in order for it to be able to allow the consumer to retrieve it under point (c). The supplier shall comply with the obligations of Regulation (EU) 2016/679. The supplier shall also not continue to store nor transfer to a third party such data;
Amendment 804 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) the supplier upon request by the consumer shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent that data has been retained by the supplier. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a structured, commonly used data formatand machine readable data format and to transmit that content to another supplier without hindrance from the initial supplier;
Amendment 812 #
Proposal for a directive
Article 13 – paragraph 2 – point d
Article 13 – paragraph 2 – point d
Amendment 819 #
Proposal for a directive
Article 13 – paragraph 2 – point e – point ii
Article 13 – paragraph 2 – point e – point ii
(ii) delete any usable copy of the digital content, render it unintelligible or otherwise refrain from using it or making it available to third parties, except when the copy was lawfully made for private use.
Amendment 821 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
Amendment 823 #
Proposal for a directive
Article 13 – paragraph 2 b (new)
Article 13 – paragraph 2 b (new)
Amendment 829 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Upon termination, the supplier may prevent any further use of the digital contentservice by the consumer, in particular by making the digital contentservice not accessible to the consumer or disabling the user account of the consumer, without prejudice to point (c) of paragraph 2.
Amendment 835 #
Proposal for a directive
Article 13 – paragraph 5
Article 13 – paragraph 5
Amendment 865 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economic damage to the digital environment ofor pecuniary damage to the consumer caused by a lack of conformity with the contract or a failure to supply the digital content. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 866 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The Member States shall lay down detailed rules for the exercise of the right to damages. When laying down those rules, Member States may provide for a reduced or increased degree of liability for damages based on objective criteria for assessing the efforts made by the supplier to avoid non-conformity of the digital content and the occurence of the damage, such as best practices in relation to security or state-of-the-art technology.
Amendment 876 #
Proposal for a directive
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. Where the contract provides that the digital content shall be supplied over the period of time stipulated in the contract, the supplier may alter functionality, interoperability and other main performance features of the digital content such as its accessibility, continuity and security, to the extent those alternations adversely affect access to or use of the digital content by the consumer, only if such alteration is necessary for the security of content in line with best practices or if all the following criteria apply:
Amendment 894 #
Proposal for a directive
Article 15 – paragraph 1 – point d
Article 15 – paragraph 1 – point d
(d) upon termination of the contract in accordance with point (c), the consumer is provided with technical means to retrieve all content provided in accordance with Article 13(2)(c) or Article 16(4)(b).
Amendment 903 #
Proposal for a directive
Article 15 – paragraph 2 – point b
Article 15 – paragraph 2 – point b
(b) the supplier shall refrain from the useprocessing of the counter-performance other than money which the consumer has provided in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer.
Amendment 917 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the contract provides for the supply of the digital content for an indeterminate period or where the initial contract duration or any combination of renewal periods exceed 126 months, the consumer shall be entitled to terminate the contract any time after the expiration of the first 126 months period.
Amendment 935 #
(a) the supplier shall take all measures which could be expected in order to refrain from the use of other counter- perfpersonal data orm ance than moneyy other data which the consumer has provided in exchange for the digital content and any other data collectprovided by the suppliconsumer in relation to the supplyuse of the digital content including any content provided by the consumer, , with exception of content which has been produced jointly by the consumer and others who continue to make use of it; The supplier shall refrain from processing personal data for the mere purpose of allowing non-personal data and content to be linkjed to the consumer in order for it to be able to allow the consumer to retrieve it under point (c). The supplier shall comply with the obligations of Regulation (EU) 2016/679;
Amendment 944 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(b) the supplier upon request by the consumer shall provide the consumer with technical means to retrieve all any content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent thisat those data hasve been retained by the supplier. The consumer shall be entitled to retrieve the content and the data without significant inconvenience, in reasonable time and in a structured, commonly used data formatand machine readable data format and shall have the right to transmit the content and data in question to another supplier without hindrance from the initial supplier; and
Amendment 953 #
Proposal for a directive
Article 16 – paragraph 4 – point c
Article 16 – paragraph 4 – point c
(c) where applicable, the consumer shall delete any usable copy of the digital content, render it unintelligible or otherwise refrain from using it including by making it available to a third party, except when the copy was lawfully made for private use.
Amendment 955 #
4 a. Without prejudice to Regulation 2016/679, the obligation in paragraph 4 (a) to refrain from the use of data provided as counter-performance shall not apply when: (a) the data has been produced jointly by the consumer and others who continue to make use of the content; (b) the data has been aggregated before the consumer has exercised the right to terminate the contract; (c) the use of the data is necessary for the termination of the contract; (d) the supplier needs to retain data in pseudonimised form for purely statistical purposes;
Amendment 957 #
Proposal for a directive
Article 16 – paragraph 4 b (new)
Article 16 – paragraph 4 b (new)
4 b. The obligation in paragraph 4 (b) to provide the consumer with technical means to retrieve any other data which does not fall in the scope of Regulation 2016/679 shall not apply (a) if the retrieval is disproportionate and unreasonable because the data due to the nature of the digital content or digital service cannot be interpreted outside the specific digital environment in which it was generated. (b) the data has been aggregated before the consumer has exercised the right to terminate the contract;
Amendment 967 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Where the supplier is liable to the consumer because of any failure to supply the digital content or a lack of conformity with the contract resulting from an act or omission by a person in earlier links of the chain of transactions, the supplier shall be entitled to pursue remedies against the person or persons liable in the chain of financial transactions. The person against whom the supplier may pursue remedies and the relevant actions and conditions of exercise, shall be determined by national law.
Amendment 970 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall ensure that adequate and effecteffective and dissuasive means exist to ensure compliance with this Directive.
Amendment 974 #
Proposal for a directive
Article 18 – paragraph 2 – point c a (new)
Article 18 – paragraph 2 – point c a (new)
(c a) organisations which are active in the field of the protection of data subjects' rights and freedoms with regard to the protection of personal data
Amendment 975 #
Proposal for a directive
Article 18 a (new)
Article 18 a (new)
Article 18 a Data protection The processing of personal data carried out in the context of activities conducted pursuant to this Directive shall comply with the provisions of Regulation (EU) 2016/0679 and Directive 2002/8//EC.
Amendment 979 #
Proposal for a directive
Article 20 – paragraph 1 a (new)
Article 20 – paragraph 1 a (new)
Directive 1993/13/EC
Annex - paragraph 1 a (new)
Annex - paragraph 1 a (new)
1 a. Unfair contract terms A contract term is deemed to be unfair for the purposes of Directive 93/13/EC if its object or effect is to: qa. enable the trader to limit the agreed performance of the digital content or digital service or to limit the interoperability of digital content with hardware or software; qb. enable the trader to limit the usability of the digital content when the consumer is offline where this is not strictly necessary for the provision of the digital content; qc. restrict uses of digital content permitted under Directive 2001/29/EC, Directive 96/9/EC, Directive 2009/24/EC or Directive 2012/28/EU; qd. require the consumer to conclude an additional contract for the supply of digital content or a digital service or a contract pertaining to hardware with the seller or a third party; qe. exclude or limit the rights under Regulation (EU) 2016/679 governing the protection of consumers' personal data.
Amendment 987 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council. The report shall examine, inter alia, interaction and compliance with Regulation (EU) 2016/679 and the case for harmonisation of rules applicable to contracts for the supply of digital content against counter- performance other than that covered by this Directive, in particular supplied against advertisement or indirect collection of data.