The new legal framework of digital content and digital services
The matters regarding the provision of digital content and digital services are stipulated in the Law on providing digital content and digital services and the sale of goods, promulgated in State Gazette No. 23/19.03.2021, effective as of 1 January 2022.
The Law introduces the following two basic terms: “digital content” and “digital service”.
“Digital content” is the data produced and provided in a digital form (e.g. computer programs and mobile apps, video, and audio files in digital form).
“Digital service” is each service allowing the consumer to create, transform and save data in a digital form or to have access to it, to share or any other interaction with data in a digital form, introduced or created by the consumer or other users of this service (e.g. computer services in a cloud and social media).
The Law is applied when the trader provides the consumer with digital content and digital services by contract in exchange for a price, paid by the consumer, also when the consumer doesn’t pay a price but provides or undertakes to provide the trader with personal data (e.g. through social media, electronic platforms, etc.).
All traders offering digital content or digital services to consumers have to comply with the following basic legal requirements:
- the digital content and digital service should be provided with no unjustified delay after signing the contract;
- the digital content or digital service should comply with certain individual and objective requirements for compliance with the contract, and with the requirements for integration of the digital content and digital service in the digital environment of the consumer.
This means that the provision of the digital content and digital service from trader by a contract should:
- comply with the description, quantity and quality, and other characteristics required by the contract (e.g. functionality, compliance, operational compatibility), as well as to be fit for the specific purpose of the contract;
- be provided together with all the accessories, instruction, and services required by the contract;
- be updated according to the agreed upon, especially in terms of the security needed to ensure the compliance of the digital content and digital service;
- be fit for the usual purposes of using the same type of digital content or digital services;
- have qualities and work characteristics that the consumer could reasonably expect (regarding functionality, operational compatibility, access, continuity, and security);
- be in compliance with every trial version and preview of the digital content or digital service provided by the trader before the signing of the contract.
The lack of some of the above characteristics of the digital content or digital services provided makes providers responsible for:
- Each non-provision of digital content or digital service;
- Each discrepancy of the digital content or digital service that exists when they are provided or appears in two years’ time at least. If the discrepancy appears during the first year, the consumer isn’t obliged to prove that it existed at the time of the grant.
Here it is important to know that if traders provide digital content / digital services for a long time, they are responsible for any discrepancies that occur during the provision period.If the trader has not provided the digital content or digital service, the consumer has the right to ask the trader to provide it. If the trader doesn’t provide the digital content or digital service without unjustified delay or in the additional time period explicitly agreed between the parties, the consumer has the right to cancel the contract.
In case of discrepancy in the digital content or digital service the consumer is entitled to:
- file a complaint. Here it is important for traders to know that the Law does not provide a specific deadline for satisfying the complaint, but only states that the repair or replacement have to be carried out within a reasonable time;
- receive a proportional price reduction, or
- cancel the contract according to the legal terms in which case the trader restores all sums paid by the consumer without any additional fees.
Failure to comply with these obligations by traders providing digital content or digital services may result in penalties.
Conclusion and withdrawal of contracts for the provision of digital content and digital services
The regulation of the contracts for provision of digital content and digital services is supplemented by some amendments in the Consumer Protection Act, effective from 28 May 2022.
On the first place, the traders are obliged to provide the consumer with certain information before the conclusion of the contract, such as information on the existence of a legal guarantee, out-of-warranty service and commercial guarantee, if any; the functionality of the goods and the measures for their technical protection; the compatibility of goods with certain types of hardware and software that are known to the trader or that can reasonably be expected to be known to him.
The traders providing digital content/digital services under a distance contract should be aware that even with this type of contract, the consumer has the right to withdraw from the contract within 14 days. In this case, the trader is obliged to refrain from using any content that is provided or created by the user when using the digital content or digital service provided by the trader.
In addition, if the consumer requests, the trader is obliged to provide him with digital content that does not constitute personal data provided or created by the consumer during the use of the digital content or digital service provided by the trader. The consumer has the right to receive digital content free of charge without being hindered by the trader.
In exercising the consumer’s right to withdraw from the distance contract, the trader may prevent any subsequent use of the digital content or digital service by the user (e.g. to make the digital content or digital service inaccessible to the user or block the user’s profile).
It is important for the traders to be aware that the user cannot withdraw from the contract for the provision of digital content that is not provided on physical media when: the performance has started and the contract obliges the user to pay; the user has given his explicit prior consent to start the performance during the time to withdraw, the consumer has confirmed that he knows that in this way he will lose his right of withdrawal and the trader has provided confirmation of the contract.
Considering the above, it could be reasonably concluded that Bulgaria already has a developed legal framework for the provision of digital content and digital services, that correspond to the European one. We have yet to see how the law will work in practice*.
*This article is up to 17 May 2022 and its main purpose is to outline the matter‘s legal frame. The above-mentioned should be not considered legal advice and we do not advise anyone to make commercial decisions based only on the information given in the article, without any qualified legal aid in the specific case. If assistance is needed, we would be glad to contact you on the following e-mail: email@example.com.