25 Amendments of Cornelia ERNST related to 2015/0287(COD)
Amendment 39 #
Proposal for a directive
Recital 13
Recital 13
(13) In the digital economy, information about individuals is often and increasingly seen by market participants as having a value comparable to money. Digital content is often supplied not in exchange for a price but against counter-performance other than money i.e. by the supplier collecting and processing personal data or by the consumer giving access to personal data or other data. Those specific business models apply in different forms in a considerable part of the market. I, often without the knowledge or free consent of the consumer. This Directive should only cover such counter-performance in the form of personal data that is in line with Regulation (EU) 2016/679, in particular its Article 7(4). In those cases, introducing a differentiation depending on the nature of the counter-performance would discriminate between different business models; it would provide an unjustified incentive for businesses to move towards offering digital content against data. A level playing field should be ensured. In addition, defects of the performance features of the digital content supplied against counter-performance other than money may have an impact on the economic interests of consumers. Therefore the applicability of the rules of this Directive should not depend on whether a price is paid for the specific digital content in question.
Amendment 45 #
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 only to contracts where the supplier requests and the consumer actively provides data, such as name and e-mail address or photos, directly or indirectly to the supplier for example through individual registration or on the basis of a contract which allows access to consumers' photos. This Directive should not apply to situations where the supplier collects data necessary for the digital content to function in conformity with the contract, for example geographical location where necessary for a mobile application to function properly, or for the sole purpose of meeting legal requirements, for instance where thepersonal data and the consumer consents to the processing of that data by the supplier, in accordance with Regulation (EU) 2016/679, for example through individual registration ofr on the consumer is required for security and identification purposes by applicable lawsbasis of a contract. 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. This Directive should not apply to situations where the supplier collects data necessary for the digital content to function in conformity with the contract, 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.
Amendment 50 #
Proposal for a directive
Recital 17
Recital 17
Amendment 58 #
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 the conformity with the contract should be assessed considering the legitimate expectations of consumers and the purpose for which digital content of the same description would normally be used.
Amendment 67 #
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. 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 72 #
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 have the contract terminated should be limited to 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 the contract, the supplier should reimburse the price paid by the consumer or, where the digital content is supplied not in exchange for a price but against access to data provided by the consumer, 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. 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 87 #
Proposal for a directive
Recital 55
Recital 55
(55) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and specifically Article 7, 8, 16, 38 and 47 thereof.
Amendment 92 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6 a. 'personal data' has the meaning of Regulation (EU) 2016/679.
Amendment 96 #
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 to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides countfreely choses to give consent to the processing of his or her- perfsonal data orm ancey other than money in the form of personal data or any other datadata by the supplier, instead of paying a price, insofar this is possible in line with Regulation (EU) 2016(679), in particular with regard to Article 7(4) thereof.
Amendment 105 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. This Directive shall not apply to digital content provided againstwithout any counter- performance other than money to the extent the supplier only 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 is entitled to 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 use that data for commercialother purposes.
Amendment 109 #
Proposal for a directive
Article 3 – paragraph 8
Article 3 – paragraph 8
8. This Directive is without prejudice to the protection of individuals with regard to the processing of personal data as laid out in Regulation (EU) 2016/679 of the European Parliament and the Council and in Directive 2002/58 of the European Parliament and the Council.
Amendment 120 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. In order to conform with the contract, the digital content shall, where relevant:
Amendment 122 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the supplier at the time of the conclusion of the contract and which the supplier accepted, or any particular purpose that the consumer can reasonably expect;
Amendment 124 #
Proposal for a directive
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) be updated as stipulated by the contract or as necessary to guarantee the characteristics provided for in points (a) and (b), in particular continuity and security.
Amendment 126 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. To the extent that the contract does not stipulate, where relevant, in a clear and comprehensive manner, the requirements for the digital content under paragraph 1, the digital content shall be fit for the purposes that consumers could reasonably expect or for which digital content of the same description would normally be used including its functionality, interoperability and other performance features such as accessibility, continuity and security, taking into account:
Amendment 128 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) where relevant, any existing international technical standards or, in the absence of such technical standards, applicable industry codes of conduct and good practices; and
Amendment 130 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
(b a) any existing models of best practices with a view to security of information systems and digital environments;
Amendment 138 #
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 security according to best practices for security of information systems;
Amendment 141 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
5. The consumer may terminate the contract only if the lack of conformity with the contract impairs functionality, interoperability and other main performance features of the digital content such as its accessibility, continuity and security where required by Article 6 paragraphs (1) and (2). The burden of proof that the lack of conformity with the contract does not impair functionality, interoperability and other main performance features of the digital content shall be on the supplier.
Amendment 146 #
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- 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 with the exception of the content which has been generated jointly by the consumer and others who continue to make use of the content;
Amendment 154 #
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 of 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 157 #
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 consumercontinuity, only if:
Amendment 161 #
Proposal for a directive
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) the consumer is notified reasonably in advance of the modification by an explicit notice on a durable medium;
Amendment 166 #
Proposal for a directive
Article 16 – paragraph 4 – point a
Article 16 – paragraph 4 – point a
(a) the supplier shall take all measures which could be expected in order to refrain from the use of other counter- performance 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 171 #
Proposal for a directive
Article 18 – paragraph 2 – point b a (new)
Article 18 – paragraph 2 – point b a (new)
(b a) organisations whose aim is the protection of the rights to privacy and the protection of personal data.