### the value the digital content would have if it were in conformity with the contract ; and ### the value the digital content or digital service would have if there were no lack of conformity ; and


### 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 and . 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 . ### the consumer may terminate the contract only if the lack of conformity with the contract impairs functionality and other main features of the digital content such as its performance , accessibility , continuity and security where required by article 6 paragraphs and . the burden of proof that the lack of conformity with the contract does not impair functionality and other main features of the digital content shall be on the supplier .


### 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 and . 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 . ### where the digital content or digital service has been supplied in exchange for a price the consumer may terminate the contract only if the lack of conformity with the contract is not only minor but also impairs functionality , interoperability and or other main performance features of the digital content such as its accessibility , continuity and security where required by article 6 and 6a . the burden of proof that the lack of conformity with the contract is not only minor and impairs functionality , interoperability and other main performance features of the digital content or digital service shall be on the supplier .


### the consumer shall cooperate with the supplier to the extent possible and necessary to determine the consumer ' s digital environment . the obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer . where the consumer fails to cooperate , the burden of proof with respect to the non - conformity with the contract shall be on the consumer . ### the consumer shall allow the supplier to ascertain the consumer ' s digital environment to the extent possible for determining whether the lack of conformity existed at the time of the supply of digital content . in particular , the consumer shall tolerate the use of the least intrusive technical means , which are at the disposal of both parties . where the consumer fails to cooperate , the burden of proof with respect to the non - conformity with the contract shall be on the consumer .


### the consumer shall exercise the right to terminate the contract by notice to the supplier given by any means . ### the consumer shall exercise the right to terminate the contract by making any unequivocal notice setting out his decision to terminate the contract .


### 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 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 . ### in the digital economy , information about individuals is often and increasingly seen by market participants as having a value comparable to money . digital content and digital services are 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 , and provide an unjustified incentive for businesses to move towards offering digital content or digital services against data . a level playing field should be ensured . in addition , defects of the performance features of the digital content or digital services supplied against counter - performance other than money may have an impact on the economic interests of consumers . with a view to ensuring a level playing - field and a high level of consumer protection , the applicability of the rules of this directive should not depend on whether a price is paid for the specific digital content or digital service in question .


### consumers are not 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 . ### consumers are generally less confident when buying cross border , especially when buying online . one of the major factors for this lack of confidence is uncertainty about their key contractual rights and the lack of a clear and uniform 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 .


### the commission shall , not later than on [ the date of five 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 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 . ### the commission shall , not later than on [ the date of five 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 interaction and compliance with the application of regulation 2016 / 679 , and the 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 .


### 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 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 this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 . ### 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 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 . this directive should also apply to all forms of digital content , including all forms of embedded digital content . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 .


### due to its nature digital content needs to interact with other digital equipment to function properly ; interoperability should therefore form a part of the conformity criteria . in particular it needs to interact with hardware including processor speed and graphics card features and software including a specific version of the operating system or specific multi - media player . the notion of functionality should refer to the ways in which digital content can be used ; it should also refer to the absence or presence of any technical restrictions such as protection via digital rights management or regional coding . ### due to their nature , digital content and digital services need to interact with other digital equipment to function properly ; interoperability should therefore form a part of the conformity criteria . in particular , the digital content or digital services need to interact with hardware including processor speed and graphics card features and software including a specific version of the operating system or specific multi - media player . the notion of functionality should refer to the ways in which digital content or digital services can be used ; it should also refer to the absence or presence of any technical restrictions such as protection via digital rights management or regional coding .


### the reduction in price shall be proportionate to the decrease in the value of the digital content which was received by the consumer compared to the value of the digital content that is in conformity with the contract . ### the reduction in price shall be proportionate to the decrease in the value of the digital content , or the product in which the digital content is embedded , which was received by the consumer compared to the value of such digital content , or such a product , in conformity with the contract .


### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content brought to conformity with the contract . depending on technical characteristics of the digital content , the supplier may select a specific way of bringing the digital content to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content should be brought into conformity with the contract within a reasonable time and free of any costs ; in particular the consumer should not incur any costs associated with the development of an update for the digital content . ### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content or digital services brought to conformity with the contract . depending on technical characteristics of the digital content or digital services , the supplier may select a specific way of bringing the digital content to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content or digital services , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to those digital content or digital services . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content or digital service should be brought into conformity with the contract within a reasonable time and free of any costs ; in particular the consumer should not incur any costs associated with the development of an update for the digital content .


### 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 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 . ### 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 . those specific business models apply in different forms in a considerable part of the market and can provide value to consumers by reducing costs and increasing innovation and choice of digital content and services . 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 . on the other hand , providing the same rights to consumers when they supply personal data by way of counterperformance other than money might incentivise consumers to opt for the supply of digital content in exchange for the supply of personal data rather than the payment of money . there should therefore be a balance between the rights and remedies provided for . 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 as far as possible not depend on whether a price is paid for the digital content in question .


### 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 ; ### the supplier shall take all measures which could be expected in order to refrain from the use of any form of counter - performance other than money which the consumer has provided in exchange for 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 ;


### fully harmonised consumer contract law rules in all member states will make it easier for businesses to offer digital content cross - border . they will have a stable contract law environment when selling online and otherwise at a distance to other member states . fully harmonised rules specific for digital content throughout the eu will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content . they will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content . ### fully harmonised consumer contract law rules in all member states will make it easier for businesses to offer digital content and digital services cross - border . they will have a stable contract law environment when selling online and otherwise at a distance to other member states . fully harmonised rules specific for digital content and digital services throughout the eu will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content and digital services . they will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content and digital services .


### 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 are already emerging 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 . ### differences in national mandatory consumer contract law rules and a lack of clear and uniform contract law rules are among the key obstacles which hinder the development of the supply of digital content and digital services , 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 supplying digital content and digital services across borders . businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content in member states in which those rules exist . 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 or digital services , traders willing to make crossborder sales face uncertainty and a lack of legal certainty , as they will often not know which rules apply to digital content or digital services in the member states to which they want to supply their digital content and digital services , nor the content of those rules and whether they are mandatory .


### consumers will benefit from fully harmonised rights for digital content at a high level of protection . they will have clear rights when they receive or access digital content from anywhere in the eu . this will increase their confidence in buying digital content . this will also contribute to reducing the detriment consumers currently suffer , since there will be a set of clear rights that will enable them to address problems they face with digital content . ### fully harmonised consumer contract law rules in all member states will make it easier for businesses to offer digital content and digital services cross - border as they will be able to rely on a stable contract law environment when supplying digital content or digital services online and otherwise at a distance to other member states . fully harmonised rules specific for digital content throughout the eu will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content or digital services . they will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content or digital services .


### consumers will benefit from fully harmonised rights for digital content at a high level of protection . they will have clear rights when they receive or access digital content from anywhere in the eu . this will increase their confidence in buying digital content . this will also contribute to reducing the detriment consumers currently suffer , since there will be a set of clear rights that will enable them to address problems they face with digital content . ### consumers will benefit from fully harmonised rights for digital content and digital services at a high and uniform level of protection . they will have clear rights when they receive or access digital content and digital services from anywhere in the eu . this will increase their confidence in buying digital content and digital services . this will also contribute to reducing the detriment consumers currently suffer , since there will be a set of clear and uniform rights that will enable them to address problems they face with digital content and digital services .


### 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 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 this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 . ### the directive should address problems across different categories of digital content or digital services and their supply . in order to ensure consistency with the acquis and cater for fast technological developments and to maintain the future - proof nature of the notion of digital content , the notion as used in this directive should correspond to the one used in directive 2011 / 83 / eu of the european parliament and of the council30 . this notion should cover , for example , video and audio content , applications , digital games and any other software . in order to cater for rapid technological developments and to ensure this directive remains abreast of the times , it should also cover services which allow the creation , processing or storage of data , such as cloud storage services or file hosting services . the notion of digital services should also cover social media platforms , instant messaging services , and video or audio - sharing websites or platforms which fall outside the scope of electronic communication services . while there are numerous ways for digital content or digital services 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 and digital services independently of the medium used for their 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 and digital services should be ensured . however this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 .


### fully harmonised consumer contract law rules in all member states will make it easier for businesses to offer digital content cross - border . they will have a stable contract law environment when selling online and otherwise at a distance to other member states . fully harmonised rules specific for digital content throughout the eu will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content . they will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content . ### consumers will benefit from fully harmonised rights for digital content or digital services at a high level of protection . they will have clear rights when they receive or access digital content or digital services in within the eu . this will increase their confidence in accessing digital content or digital services and contribute to reducing the detriment consumers currently suffer , since there will be a set of clear rights that will enable them to address problems they face with digital content or digital services .


### due to the specific nature of digital content with its high complexity as well as the supplier ' s better knowledge and access to know how , technical information and high - tech assistance , it is the supplier who is in a better position than the consumer to know the reasons for the digital content not being in conformity with the contract . the supplier is also in a better position to assess whether the lack of conformity with the contract is due to incompatibility of the consumer ' s digital environment with the technical requirements for the digital content . therefore in case of a dispute it should be for the supplier to prove that the digital content is in conformity with the contract , unless the supplier proves that the consumer ' s digital environment is not compatible with the digital content . only where the supplier proves that the consumer ' s digital environment is not compatible with the interoperability and other technical requirements , it should be for the consumer to prove that the digital content is not in conformity with the contract . ### in case of a dispute it should be for the supplier to prove that the digital content is in conformity with the contract , unless this would be incompatible with the nature of the digital content or the nature of the lack of conformity with the contract . this should be the case in particular where the supplier proves that the consumer ' s digital environment is not compatible with the digital content . in the case of contracts having as their object the one - off supply of digital content , it should therefore be for the supplier , in principle , to prove that the digital content was in conformity with the contract at the time of supply if within six months of supply a lack of conformity with the contract becomes apparent . in the case of long - term obligations , this presumption should apply during the course of the contract and for a period of six months after the end of the contract . in assessing whether the lack of conformity with the contract is due to incompatibility of the consumer ' s digital environment with the technical requirements for the digital content , the supplier is dependent on the cooperation of the consumer .


### fully harmonised consumer contract law rules in all member states will make it easier for businesses to offer digital content cross - border . they will have a stable contract law environment when selling online and otherwise at a distance to other member states . fully harmonised rules specific for digital content throughout the eu will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content . they will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content . ### fully harmonised consumer contract law rules in all member states will make it easier for businesses to offer digital content and digital services cross - border . they will have a stable and uniform contract law environment when selling online and otherwise at a distance to other member states . fully harmonised rules specific for digital content and digital services throughout the eu will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content and / or digital services . they will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content and digital services .


### the supplier should be liable to the consumer for the lack of conformity with the contract and for any failure to supply the digital content . moreover , given that digital content may be supplied over a period of time , it is justified that the supplier should be liable for any lack of conformity which occurs during that period . ### the supplier should be liable to the consumer for any failure to supply the digital content or a digital service and for the lack of conformity with the contract . moreover , given that digital content or digital services may be supplied over a period of time , it is justified that the supplier should be liable for any lack of conformity which occurs during that period .


### the supplier has not completed the remedy within the time specified in paragraph 2 ; ### the supplier has not brought the digital content or digital service in conformity within a reasonable time in accordance with paragraph 2 ;


### 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 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 . ### in the digital economy , information about individuals is often and increasingly seen by market participants as having a value comparable to money . digital content and digital services are 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 , and provide an unjustified incentive for businesses to move towards offering digital content or digital services against data . a level playing field should be ensured . in addition , defects of the performance features of the digital content or digital services supplied against counter - performance other than money may have an impact on the economic interests of consumers . with a view to ensuring a level playing - field and a high level of consumer protection , the applicability of the rules of this directive should not depend on whether a price is paid for the specific digital content or digital service in question .


### 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 / ec 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 . ### 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 the lack of non - conformity is not only minor and where bringing the digital content or digital service to conformity is not possible , and the non - conformity impairs functionality , interoperability or performance features of the digital content or digital service such as its accessibility , continuity and security as required by objective or subjective conformity criteria . where the consumer terminates the contract , the supplier should reimburse the price paid by the consumer .


### many types of digital content are supplied over a period of time . for instance , consumers access cloud services over a period of time . it is therefore important to ensure that the digital content is in conformity with the contract throughout the duration of the contract . moreover , given the frequent improvement of digital content , notably by updates , the version of digital content supplied to the consumer should be the most recent one available at the time of the conclusion of the contract . ### many types of digital content or digital services are supplied over a period of time , such as access to cloud services . it is therefore important to ensure that the digital content or digital services are in conformity with the contract throughout the duration of the contract . moreover , given the frequent improvement of digital content or digital services , notably by updates , the version of digital content supplied to the consumer should be the most recent one available at the time of the conclusion of the contract .


### 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 . ### 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 or digital service is not in conformity with the contract provided that the consumer was informed about this consequence .


### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content brought to conformity with the contract . depending on technical characteristics of the digital content , the supplier may select a specific way of bringing the digital content to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content should be brought into conformity with the contract within a reasonable time and free of any costs ; in particular the consumer should not incur any costs associated with the development of an update for the digital content . ### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content or digital service brought to conformity with the contract . depending on technical characteristics of the digital content or digital service , the supplier may select a specific way of bringing the digital content or digital service to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content or digital services , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content or digital service . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content or digital service should be brought into conformity with the contract within a reasonable time and free of any costs . the consumer should not incur any costs associated with the development of an update for the digital content or digital service .


### the consumer shall be entitled to either a proportionate reduction of the price in the manner set out in paragraph 4 where the digital content is supplied in exchange for a payment of a price , or terminate the contract under paragraph 5 and article 13 , where ### the consumer shall be entitled to either an appropriate reduction of the price in the manner set out in paragraph 4 where the digital content or digital service is supplied in exchange for a payment of a price , or a termination of the contract under paragraph 5 and article 13 , where


### 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 and . 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 . ### where the digital content or digital service has been supplied in exchange for a price the consumer may terminate the contract only if the lack of conformity with the contract is not only minor but also impairs functionality , interoperability and or other main performance features of the digital content such as its accessibility , continuity and security where required by article 6 and 6a . the burden of proof that the lack of conformity with the contract is not only minor and impairs functionality , interoperability and other main performance features of the digital content or digital service shall be on the supplier .


### 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 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 this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 . ### the directive should address problems across different categories of digital content or digital services and their supply . in order to ensure consistency with the acquis the notion of digital content should correspond with the one used in directive 2011 / 83 / eu of the european parliament and of the council and should cover for example video , audio , applications , digital games and any other software . 30 in order to cater for fast technological developments and to ensure this directive is future - proof , this directive should also cover digital services which allow the creation , processing or storage of data , for example cloud storage or file hosting services . it should also cover digital services allowing sharing and other interaction , for example social media , video or audio sharing websites or platforms . while there are numerous ways for digital content or digital services to be supplied , such as transmission on a tangible medium , downloading by consumers on their devices , web - streaming , allowing access to storage capabilities of digital services or access to the use of social media , this directive should apply to all digital content or digital services 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 or digital services should be ensured . this directive should also apply to digital content which is embedded in goods , including dvds and cds , unless the supplier proves that the defect lies in the hardware of the good . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 .


### 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 are already emerging 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 . ### 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 or digital services , 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 supplying digital content or digital services across borders . businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content or digital services of member states where such rules already exist . the emergence of such rules results in 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 or digital services , suppliers willing to supply cross - border face uncertainty , as they will often not know which rules apply to digital content or digital services in the member state they want to supply to , nor the content of those rules and whether they are mandatory .


### a failure of the supplier to supply the digital content to the consumer in accordance with the contract is a serious breach of the main contractual obligation of the supplier , which should allow the consumer to immediately terminate the contract . where the supplier has initially not failed to supply the digital content , interruptions of the supply making the digital content not available or accessible to the consumer over a short period of time should be treated as non - conformity with the contract , and not a failure to supply . in particular , the requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply . ### where the supplier fails to supply the digital content or digital services to the consumer in accordance with the contract the consumer should call upon the supplier to make the supply within an additional and appropriate period of time . any failure to supply within this additional period of time should allow the consumer to terminate the contract . where the supplier has initially not failed to supply the digital content or digital services , interruptions of the supply making the digital content or digital services not available or accessible to the consumer over a short period of time should be treated as non - conformity with the contract , and not a failure to supply . in particular , the requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply which are significant , continuous and recurring .


### 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 . ### 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 or digital service . damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content or digital service had been duly supplied and been in conformity with the contract .


### the remedy to bring the digital content in conformity would cause significant inconvenience to the consumer ; or ### the remedy to bring the digital or digital service content in conformity would cause significant inconvenience to the consumer ; or


### the supplier has declared , or it is equally clear from the circumstances , that the supplier will not bring the digital content in conformity with the contract . ### the supplier has declared , or it is equally clear from the circumstances , that the supplier will not bring the digital content or digital service in conformity with the contract .


### where the consumer terminates a part of the contract in accordance with paragraph 5 , paragraph 2 shall apply , with the exception of point in regards to the period during which the digital content was in conformity with the contract . the supplier shall reimburse to the consumer the part of the price paid corresponding to the period of time when the digital content was not in conformity with the contract . ### where the consumer gives notice terminating the contract in accordance with article 5 , paragraph 2 shall apply for the period during which the digital content or digital service was no longer in conformity with the contract . the supplier shall reimburse to the consumer the part of the price paid corresponding to the period of time after which the digital content or digital service was no longer in conformity with the contract .


### 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 consumer , only if : ### where the contract provides that the digital content or digital service shall be supplied over the period of time stipulated in the contract , the supplier may alter the functionality , interoperability and other main performance features of the digital content or digital service , to the extent those alternations adversely affect access to or use of the digital content or digital service by the consumer , only if : the contract allows for and gives a valid reason for such an alteration ; such an alteration can reasonably be expected by the consumer ; the consumer is notified reasonably in advance of the modification and the corresponding right to terminate in a clear and comprehensive manner notice on a durable medium ; and the consumer is allowed to terminate the contract free of any charges within no less than 30 days from day of the receipt of the notice or from the time the digital content is altered by the supplier , whichever is later ;


### fully harmonised consumer contract law rules in all member states will make it easier for businesses to offer digital content cross - border . they will have a stable contract law environment when selling online and otherwise at a distance to other member states . fully harmonised rules specific for digital content throughout the eu will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content . they will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content . ### consumers will benefit from fully harmonised rights for digital content or digital services at a high level of protection . they will have clear rights when they receive or access digital content or digital services in within the eu . this will increase their confidence in accessing digital content or digital services and contribute to reducing the detriment consumers currently suffer , since there will be a set of clear rights that will enable them to address problems they face with digital content or digital services .


### any failure to supply the digital content ; ### any failure to supply the digital content or digital service ;


### 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 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 this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 . ### 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 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 .


### 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 council1 . in particular it should 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 this directive should not apply to 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 . __________ oj l 304 , 22 . 11 . 2011 , p . 64 . ### this 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 council1 . in particular it should 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 . __________ oj l 304 , 22 . 11 . 2011 , p . 64 .


### 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 are already emerging 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 . ### differences in national mandatory consumer contract law rules and a lack of clear contract law rules are among the major 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 are already emerging 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 selling 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 .


### by fully harmonising all requirements related to the topics regulated by this directive , it precludes member states , within its scope of application , from providing any further formal or substantive requirements , such as a period during which the lack of conformity has to become apparent , an obligation for the consumer to notify the supplier of a lack of conformity within a specific period or an obligation for the consumer to pay for the use of the digital content until the moment of termination because of a lack of conformity with the contract . ### by fully harmonising all requirements related to the topics regulated by this directive , it precludes member states , within its scope of application , from providing any further formal or substantive requirements , such an obligation for the consumer to notify the supplier of a lack of conformity within a specific period or an obligation for the consumer to pay for the use of the digital content or digital service until the moment of termination because of a lack of conformity with the contract .


### conformity should cover material as well as legal defects . third party rights might effectively bar the consumer from enjoying the digital content or some of its features in accordance with the contract if those third party rights are infringed , and if when the third party rightfully compels the supplier to stop infringing those rights and to discontinue offering the digital content in question . legal defects are particularly important for digital content , which , by its nature , is subject to intellectual property rights . therefore the supplier should be obliged to ensure that the digital content is free from any right of a third party , for example a copyright claim related to the digital content , which precludes the consumer from enjoying the digital content in accordance with the contract . ### conformity should cover material as well as legal defects . third party rights might effectively bar the consumer from enjoying the digital content or digital services or some of their features in accordance with the contract if those third party rights are infringed , and if the third party rightfully compels the supplier to stop infringing those rights and to discontinue offering the digital content or digital services in question . legal defects are particularly important for digital content or digital services , which , by its nature , are subject to intellectual property rights . therefore the supplier should be obliged to ensure that the digital content or digital services are free from any restrictions resulting from any right of a third party , for example a copyright claim related to the digital content , which precludes the consumer from enjoying the digital content in accordance with the contract .


### 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 . ### for the achievement of a genuine digital single market , the harmonisation of certain aspects concerning contracts for the supply of digital content and digital services is necessary , taking as a base a high level of consumer protection and a business - friendly environment and guaranteeing legal certainty and avoiding unnecessary costs . .


### the value the digital content would have if it were in conformity with the contract ; and ### the value the digital content or digital service would have if there were no lack of conformity ; and


### the consumer shall cooperate with the supplier to the extent possible and necessary to determine the consumer ' s digital environment . the obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer . where the consumer fails to cooperate , the burden of proof with respect to the non - conformity with the contract shall be on the consumer . ### the consumer shall allow the supplier to ascertain the consumer ' s digital environment to the extent possible for determining whether the lack of conformity existed at the time of the supply of digital content . in particular , the consumer shall tolerate the use of the least intrusive technical means , which are at the disposal of both parties . where the consumer fails to cooperate , the burden of proof with respect to the non - conformity with the contract shall be on the consumer .


### the supplier shall bring the digital content in conformity with the contract pursuant to paragraph 1 within a reasonable time from the time the supplier has been informed by the consumer about the lack of conformity with the contract and without any significant inconvenience to the consumer , taking account of the nature of digital content and the purpose for which the consumer required this digital content . ### the supplier shall bring the digital content or digital service in conformity with the contract pursuant to paragraph 1 within a reasonable time from the time the supplier has been informed by the consumer about the lack of conformity with the contract and without any significant inconvenience to the consumer , taking account of the nature of digital content or digital service and the purpose for which the consumer required this digital content or digital service .


### there are various ways for digital content to reach consumers . it is opportune to set simple and clear rules as to the modalities and the time for performing the supplier ' s main contractual obligation to supply digital content to the consumer . considering that the supplier is not in principle responsible for acts or omissions of an internet provider or an electronic platform which the consumer selected for receiving the digital content , it should be sufficient for the supplier to supply the digital content to this third party . with regard to the time of supply , in line with market practices and technical possibilities , the digital content should be supplied immediately , unless the parties decide to agree otherwise in order to cater for other supply models . ### there are various ways for digital content or digital services to reach consumers . it is opportune to set simple and clear rules as to the modalities and the time for performing the supplier ' s main contractual obligation to supply digital content or digital services to the consumer . considering that the supplier is not in principle responsible for acts or omissions of an internet provider or an electronic platform which the consumer selected for receiving the digital content or digital service , it should be sufficient for the supplier to supply the digital content or digital service to this third party or to a third party designated by the consumer . with regard to the time of supply , in line with market practices and technical possibilities , the digital content or digital service should be supplied without undue delay after conclusion of the contract , unless the parties decide to agree otherwise in order to cater for other supply models .


### 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 / ec 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 . ### 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 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 / ec 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 .


### 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 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 this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 . ### the directive should address problems across different categories of digital content or digital services and their supply . in order to ensure consistency with the acquis and cater for fast technological developments and to maintain the future - proof nature of the notion of digital content , the notion as used in this directive should correspond to the one used in directive 2011 / 83 / eu of the european parliament and of the council30 . this notion should cover , for example , video and audio content , applications , digital games and any other software . in order to cater for rapid technological developments and to ensure this directive remains abreast of the times , it should also cover services which allow the creation , processing or storage of data , such as cloud storage services or file hosting services . the notion of digital services should also cover social media platforms , instant messaging services , and video or audio - sharing websites or platforms which fall outside the scope of electronic communication services . while there are numerous ways for digital content or digital services 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 and digital services independently of the medium used for their 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 and digital services should be ensured . however this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 .


### any lack of conformity which exists at the time the digital content is supplied ; and ### any lack of conformity which exists at the time the digital content or digital service is supplied ;


### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content brought to conformity with the contract . depending on technical characteristics of the digital content , the supplier may select a specific way of bringing the digital content to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content should be brought into conformity with the contract within a reasonable time and free of any costs ; in particular the consumer should not incur any costs associated with the development of an update for the digital content . ### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content or digital service brought to conformity with the contract . depending on technical characteristics of the digital content or digital service , the supplier may select a specific way of bringing the digital content or digital service to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content or digital services , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content or digital service . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content or digital service should be brought into conformity with the contract within a reasonable time and free of any costs . the consumer should not incur any costs associated with the development of an update for the digital content or digital service .


### the significance of the lack of conformity with the contract for attaining the purpose for which the digital content of the same description would normally be used . ### the significance of the lack of conformity with the contract .


### consumers will benefit from fully harmonised rights for digital content at a high level of protection . they will have clear rights when they receive or access digital content from anywhere in the eu . this will increase their confidence in buying digital content . this will also contribute to reducing the detriment consumers currently suffer , since there will be a set of clear rights that will enable them to address problems they face with digital content . ### consumers will benefit from fully harmonised rights for digital content and digital services at a high level of protection . they will have clear rights when they receive or access digital content or digital services from anywhere in the eu . this will increase their confidence in buying digital content and digital services . this will also contribute to reducing the detriment consumers currently suffer , since there will be a set of clear rights that will enable them to address problems they face with digital content and digital services .


### 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 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 this directive should not apply to 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 . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 . ### the directive should address problems across different categories of digital content or digital services and their supply . in order to ensure consistency with the acquis the notion of digital content should correspond with the one used in directive 2011 / 83 / eu of the european parliament and of the council and should cover for example video , audio , applications , digital games and any other software . 30 in order to cater for fast technological developments and to ensure this directive is future - proof , this directive should also cover digital services which allow the creation , processing or storage of data , for example cloud storage or file hosting services . it should also cover digital services allowing sharing and other interaction , for example social media , video or audio sharing websites or platforms . while there are numerous ways for digital content or digital services to be supplied , such as transmission on a tangible medium , downloading by consumers on their devices , web - streaming , allowing access to storage capabilities of digital services or access to the use of social media , this directive should apply to all digital content or digital services 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 or digital services should be ensured . this directive should also apply to digital content which is embedded in goods , including dvds and cds , unless the supplier proves that the defect lies in the hardware of the good . _________________ 30 oj l 304 , 22 . 11 . 2011 , p . 64 .


### modification of the digital content ### modification of the digital content or digital services


### due to the specific nature of digital content with its high complexity as well as the supplier ' s better knowledge and access to know how , technical information and high - tech assistance , it is the supplier who is in a better position than the consumer to know the reasons for the digital content not being in conformity with the contract . the supplier is also in a better position to assess whether the lack of conformity with the contract is due to incompatibility of the consumer ' s digital environment with the technical requirements for the digital content . therefore in case of a dispute it should be for the supplier to prove that the digital content is in conformity with the contract , unless the supplier proves that the consumer ' s digital environment is not compatible with the digital content . only where the supplier proves that the consumer ' s digital environment is not compatible with the interoperability and other technical requirements , it should be for the consumer to prove that the digital content is not in conformity with the contract . ### in case of a dispute it should be for the supplier to prove that the digital content is in conformity with the contract , unless this would be incompatible with the nature of the digital content or the nature of the lack of conformity with the contract . this should be the case in particular where the supplier proves that the consumer ' s digital environment is not compatible with the digital content . in the case of contracts having as their object the one - off supply of digital content , it should therefore be for the supplier , in principle , to prove that the digital content was in conformity with the contract at the time of supply if within six months of supply a lack of conformity with the contract becomes apparent . in the case of long - term obligations , this presumption should apply during the course of the contract and for a period of six months after the end of the contract . in assessing whether the lack of conformity with the contract is due to incompatibility of the consumer ' s digital environment with the technical requirements for the digital content , the supplier is dependent on the cooperation of the consumer .


### 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 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 . ### in the digital economy , information about individuals is often and increasingly seen by market participants as having a value comparable to money . digital content or digital services are often supplied not in exchange for a price but against personal data , i . e . by giving access to it . 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 , which could provide an unjustified incentive for businesses to move towards offering digital content or digital services against data . in addition , defects of the performance features of the digital content or digital services supplied against personal data may have an impact on the economic interests of consumers . in order to ensure a level - playing field the applicability of the rules of this directive should not depend on whether a price is paid for the specific digital content or digital service in question .


### this directive should not deal with copyright and other intellectual property related aspects of the supply of digital content . therefore it should be without prejudice to any rights and obligations according to copyright law and other intellectual property laws . ### this directive should not deal with copyright and other intellectual property related aspects of the supply of digital content or digital services . therefore it should be without prejudice to any rights and obligations according to copyright law and other intellectual property laws .


### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content brought to conformity with the contract . depending on technical characteristics of the digital content , the supplier may select a specific way of bringing the digital content to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content should be brought into conformity with the contract within a reasonable time and free of any costs ; in particular the consumer should not incur any costs associated with the development of an update for the digital content . ### in the case of non - conformity with the contract , consumers should as a first step be entitled to have the digital content or digital services brought to conformity with the contract . depending on technical characteristics of the digital content or digital services , the supplier may select a specific way of bringing the digital content to conformity with the contract , for example by issuing updates or requiring the consumer to access a new copy of the digital content . given the diversity of digital content or digital services , it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to those digital content or digital services . such deadlines may not capture this diversity and be either too short or too long , depending on the case . it is therefore more appropriate to refer to reasonable deadlines . the digital content or digital service should be brought into conformity with the contract within a reasonable time and free of any costs ; in particular the consumer should not incur any costs associated with the development of an update for the digital content .


### 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 are already emerging 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 . ### 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 and digital services , 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 supplying digital content or digital services across borders . businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content or digital services that are already emerging 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 or digital services , traders willing to supply such content or services cross - border face uncertainty , as they will often not know which rules apply to the digital content or digital service in the member state in which they want to supply this , nor the content of those rules and whether they are mandatory .


### the reduction in price shall be proportionate to the decrease in the value of the digital content which was received by the consumer compared to the value of the digital content that is in conformity with the contract . ### the reduction in price shall be proportionate to the decrease in the value of the digital content , or the product in which the digital content is embedded , which was received by the consumer compared to the value of such digital content , or such a product , in conformity with the contract .


### consumers are not 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 . ### there is very low consumer confidence in crossborder electronic trade . consumers are not 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 and uniform contractual framework for digital content and digital services . many consumers of digital content and digital services experience problems related to the quality of , or access to , digital content and digital services . for instance , they receive wrong or faulty digital content , or they are not able to access the digital content or digital service in question . as a result , consumers suffer financial and non - financial detriment .


### in order to remedy these problems , both businesses and consumers should be able to rely on fully harmonised rules for the supply of digital content setting out union - wide contractual rights which are essential for this type of transactions . ### in order to remedy these problems , both consumers and businesses should be able to rely on fully harmonised rules for the supply of digital content setting out union - wide contractual rights which are essential for this type of transactions .


### 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 and . 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 . ### 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 and . such termination may be effected , in accordance with directive 1999 / 44 / ec , within a period of two years . 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 .


### a failure of the supplier to supply the digital content to the consumer in accordance with the contract is a serious breach of the main contractual obligation of the supplier , which should allow the consumer to immediately terminate the contract . where the supplier has initially not failed to supply the digital content , interruptions of the supply making the digital content not available or accessible to the consumer over a short period of time should be treated as non - conformity with the contract , and not a failure to supply . in particular , the requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply . ### where the supplier fails to supply the digital content or digital services to the consumer in accordance with the contract the consumer should call upon the supplier to make the supply within an additional and appropriate period of time . any failure to supply within this additional period of time should allow the consumer to terminate the contract . where the supplier has initially not failed to supply the digital content or digital services , interruptions of the supply making the digital content or digital services not available or accessible to the consumer over a short period of time should be treated as non - conformity with the contract , and not a failure to supply . in particular , the requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply which are significant , continuous and recurring .


### where the consumer terminates a part of the contract in accordance with paragraph 5 , paragraph 2 shall apply , with the exception of point in regards to the period during which the digital content was in conformity with the contract . the supplier shall reimburse to the consumer the part of the price paid corresponding to the period of time when the digital content was not in conformity with the contract . ### where the consumer gives notice terminating the contract in accordance with article 5 , paragraph 2 shall apply for the period during which the digital content or digital service was no longer in conformity with the contract . the supplier shall reimburse to the consumer the part of the price paid corresponding to the period of time after which the digital content or digital service was no longer in conformity with the contract .