Supply of Digital Content. A New Challenge for European Contract Law

Abstract

INTRODUCTION It has only taken a relatively short amount of time for the supply of digital content to become a key factor in many branches of business and a determinative element in relation to market activity. One merely needs to note that since 2008 one of the major world players has brought in over US $40 billion for application developers. Moreover, in terms of the Internet economy in general it has been estimated that, if the Internet were a separate country, its GDP would be the fift h largest in the world, ahead of Germany. The economic importance of the digital economy cannot be denied and thus nor can that of the digital market as the medium for spreading the fruits of the digital revolution to potential users in all aspects of business and society. On a legal level, contract law (as market law) is the primary facilitator and promoter of this transfer and therefore its own development is linked to the technological and economic shift termed the ‘Digital Revolution’. Contract practice has already made use of freedom of contract to respond extensively to these new developments (for example, in cloud computing through the development of different types of standard contracts that can be made available online for the conclusion of B2C or B2B contracts). The national legislators of several European Member States have also directed their attention to this field (such as the United Kingdom with the recent Consumer Rights Act 2015, which contains specific provisions on consumers’ guarantee rights in contracts for digital content). At European level, the European legislator was one of the first legislators worldwide to outline the possibility of placing these new developments in a contract law framework: in 2011 the European Commission proposed a Common European Sales Law (CESL) which covered the supply of digital content and placed this in the CESL's system of contact law. Since the withdrawal of this proposal (which the European Parliament had principally approved, but which was criticised by several Member States) the European Commission has now proposed a directive on certain aspects concerning contracts for the supply of digital content (hereinafter referred to as the ‘Digital Directive’). This proposal is now at the heart of the discussions on the further development of European contract law in light of the challenges posed by digital content.