Some Considerations on the Material Scope of the New Digital Content Directive: Too Much to Work Out for a Common European Framework

Abstract

The aimof this article is to analyse some of themain issues regarding thematerial scope of the new Directive 2019/770/EU on certain aspects concerning contracts for the supply of digital content and digital services. It focuses on the concept of digital content and services and on the changes made to the rules laid down in Directive 2011/83/EU on consumer rights. To this end, it pays particular attention to the treatment of digital content depending on whether or not it is supplied in a tangible medium and to the identification of the rules applicable in each case. It also addresses the exclusion of so-called goods with digital elements from the scope of Directive 2019/770, the requirements for such exclusion and the legal regime applicable to such goods under the new Sales Contract Directive 2019/771/EU. Finally, it analyses the novel inclusion of the so-called ‘free contracts’ within the scope of Directive 2019/770 where the counter performance of the consumer consists solely in providing personal data in exchange for digital content or services supplied, the exceptions to that inclusion in viewof the formthrough which such data are collected and its problematic interaction with the General Data Protection Regulation 2016/679/EU.