40 Amendments of Vicky FORD related to 2015/0287(COD)
Amendment 76 #
Proposal for a directive
Recital 1
Recital 1
(1) The growth potential of e- commerce has not yet been fully exploitrealised. The Digital Single Market Strategy for Europe29 tackles in a holistic mannerhad, as one of its core ambitions, tackling the major obstacles to the development of cross-border e-commerce in the Union in order to unleash this potential. Ensuring better access for consumers to digital content and facilitating businesses to supply digital content is necessary toessential to help boost the Union’s digital economy and stimulate overall growth. _________________ 29 COM (2015) 192 final.
Amendment 84 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protection, is necessary and a pro-innovation future-proof approach, is to be welcomed.
Amendment 98 #
Proposal for a directive
Recital 3
Recital 3
(3) Differences in national mandatory consumer contract law rules and a lack of clear contract law rules are among the key obstacles which hinder the development of the supply of digital content, as very few tailor-made rules exist at Union level. Businesses face additional costs stemming from differences in national mandatory consumer contract law rules and legal uncertainty when selling digital content across borders. Businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content that are already emerging or have been successfully implemented in several Member States, creating differences in scope and content between specific national rules governing these contracts. In those Member States where there are not yet specific rules for the supply of digital content, traders willing to sell cross-border face uncertainty, as they will often not know which rules apply to digital content in the Member State they want to export to, nor the content of those rules and whether they are mandatory.
Amendment 108 #
Proposal for a directive
Recital 4
Recital 4
(4) Consumers are not always confident when buying cross border and especially online. One of the major factors for this lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital content. Many consumers of digital content experience problems related to the quality of, or access to, digital content. For instance, they receive wrong or faulty digital content, or they are not able to access the digital content in question. As a result, consumers suffer financial and non- financial detriment.
Amendment 113 #
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, learnt from best practices in Member States, for the supply of digital content setting out Union-wide contractual rights which are essential for this type of transactions.
Amendment 159 #
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 Parliament and of the Council.30 In particular it should also cover services which allow the creation, processing or storage of data. While there are numerous ways for digital content 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 tThis Directive should notalso apply to all forms of 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, including all forms of embedded digital content. _________________ 30 OJ L 304, 22.11.2011, p.64.
Amendment 171 #
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. The Directive should apply to the digital content supplied on a duratangible medium, and to embedded digital content, 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 174 #
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 giving access to personal data or other data. Those specific business models apply in different forms in a considerable part of the market. 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 addi, diversifying consumer choice and encouraging innovation, d. Defects of the performance features of the digital content supplied against counter-performance other than money mayfree of charge may, in some circumstances, have an impact on the economic interests of consumers. Therefore the applicability of the rules of this Directive should not depend on whether a pric, however remedies should not be the same ias paid for the specific digital content in questionfor paid content.
Amendment 186 #
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 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 contentto consumers free of charge, this Directive should provide for further technical and legal analysis to determine how consumers provide their data as a counter- performance, to be accessed as part of the future review process.
Amendment 187 #
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 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 225 #
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 Council31, by Regulation (EU) 2016/679 of the European Parliament and of the Council 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 Union. 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]. 32 OJ L 201, 31.7.2002, p. 37–47. OJ L 201, 31.7.2002, p. 37–47.
Amendment 246 #
Proposal for a directive
Recital 27
Recital 27
(27) While data-driven services and technologies bring significant benefits, they also create some vulnerabilities. As recognised by the Digital Single Market Strategy a high level of network and information security is essential across the European Union to ensure respect of fundamental rights such as the right to privacy and personal data, to increase user confidence and strengthen their trust in the digital economy. As software becomes pervasive, qualities such as reliability, security and adaptability to evolving needs are also becoming a prime concern. It is therefore increasingly important that those data- driven services and technologies ensure that those qualities are guaranteed, to the extent that is proportionate to the role and function those technologies play. In particular, quality in terms of security and reliability is becoming an important concern for innovative, composite services that have to rely on the interconnection of diverse systems in different domains.
Amendment 302 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37 a) This Directive will not require any supplier to take additional data protection measures which are not already covered under Regulation (EU) 2016/679.
Amendment 305 #
Proposal for a directive
Recital 38
Recital 38
(38) Upon termination the supplier should also refrain from using the personal data and data and 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.
Amendment 312 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the supplier should allow the consumer to retrieve 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. This obligation should extend to data which the supplier is obliged to retain under the contract for the supply of the digital content as well as to data which the supplier has effectively retained in relation to the contractthe significant personal data of the consumer, in accordance with Regulation (EU) 2016/679.
Amendment 392 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
1 a. 'embedded digital content' means all forms of digital content pre-installed in a good.
Amendment 400 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
3. 'supplier' means any natural or legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to that person’s trade, business, craft, or profession; For the purposes of this Directive, a trader does not supply digital content to a consumer merely because the trader supplies a service by which digital content reaches the consumer;
Amendment 424 #
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 441 #
Proposal for a directive
Article 2 – paragraph 1 – point 11
Article 2 – paragraph 1 – point 11
11. ‘duratangible medium’ means any instrument which enables the consumer or the supplier to store information addressed personally to that person in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored.
Amendment 444 #
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. Payment as a counter- performance other than money in the form of personal data or any other data will be considered for the inclusion in the Directive as part of the future review process.
Amendment 447 #
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 good with embedded digital content 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 of personal data or any other data.
Amendment 479 #
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 purposeRegulation (EU) 2016/679. 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 use that data for commercial purposes.
Amendment 504 #
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 provided for by Directive 95/46/EC and by Regulation (EU) 2016/679.
Amendment 514 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Member States shall not maintain or introduce provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection.
Amendment 546 #
Proposal for a directive
Article 6 – title
Article 6 – title
Amendment 559 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) conform with the consumer's legitimate expectations and 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;
Amendment 775 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any means which have been contractually agreed between the supplier and the consumer.
Amendment 783 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1 a. In the case of digital contracts the supplier should be obliged to offer the consumer an easy to access online method of terminating the contract.
Amendment 791 #
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 moneyensure that the supplier uses personal data 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 exceptin accordance with the provisions of the content which has been generated jointly by the consumer and others who continue to make use of the contentRegulation (EU) 2016/679;
Amendment 807 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) the supplier 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 retainpersonal data, as defined under Regulation (EU) 2016/679, provided by the suppliconsumer. The consumer shall be entitled to retrieve the contentdata free of charge, without significant inconvenience, in reasonable time and in a commonly used data format;
Amendment 814 #
Proposal for a directive
Article 13 – paragraph 2 – point d
Article 13 – paragraph 2 – point d
(d) where the digital content was not supplied on a duratangible medium, the consumer shall refrain from using the digital content or making it available to third parties, in particular by deleting the digital content or rendering it otherwise unintelligible;
Amendment 816 #
Proposal for a directive
Article 13 – paragraph 2 – point e – introductory part
Article 13 – paragraph 2 – point e – introductory part
(e) where the digital content was supplied on a duratangible medium, the consumer shall:
Amendment 817 #
Proposal for a directive
Article 13 – paragraph 2 – point e – point i
Article 13 – paragraph 2 – point e – point i
(i) upon the request of the supplier, return, at the supplier's expense, the duratangible medium to the supplier without undue delay, and in any event not later than 14 days from the receipt of the supplier's request; and
Amendment 862 #
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 device or to other digital envirconmtent 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 886 #
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 duratangible medium;
Amendment 901 #
Proposal for a directive
Article 15 – paragraph 2 – point b
Article 15 – paragraph 2 – point b
(b) the supplier shall 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 consumerany personal data which the consumer has provided in accordance with the provisions of Regulation (EU) 2016/679.
Amendment 914 #
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 12 months, the consumer shall be entitled to terminate the contract any time after the expiration of the first 12 months period, unless contractually agreed between the supplier and the consumer.
Amendment 936 #
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 consumerrefrain from the use of any personal data which the consumer has provided in accordance with the provisions of Regulation (EU) 2016/679;
Amendment 947 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(b) the supplier 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 contentpersonal data provided by the consumer , to the extent this data has been retained by the supplier. The consumer shall be entitled to retrieve the content without significant inconvenience, in reasonable time and in a commonly used data format; and
Amendment 985 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of fivthree 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, the concept of data as a counter-performance, 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 practicalities of returning data, the limitations on data generated content and the impact on smaller businesses and start-ups. The Commission will, by two years after the date of review, come forward with a proposal to amend the Directive accordingly.