Modification of Digital Content and Digital Services Within the Understanding of the Directive 2019/770 and Draft Law № 6576
Authors: Mamaiev Illia 
Published: June 2023

Problem setting. In May 2019, the European Parliament and the Council adopted the 2019/770 Directive «On Certain Aspects Concerning Contracts for the Supply of Digital Content and Digital Services», which came into force for EU Member States on January 1, 2022. The outlined directive makes many changes in the legal relationship between consumers and suppliers of digital content or services, which performs several positive functions at once: 1) elimination of legal gaps in the defined field; 2) improvement of consumer protection as a more vulnerable side of legal relations; 3) harmonization of disparate national regulation on a single approach; 4) promoting interstate economic relations through reducing market barriers. It is fair to point out that Ukraine also needs to eliminate the above problems. In addition to the need for national legislation on the Acquis of the European Union, the adaptation of domestic regulation to the above directive should contribute to the development of the digital market and to increase legal certainty for both consumers and for suppliers of digital content or services. In some of the latest works, the author conducted a comparative analysis of the regulation of personal data between Directive 2019/770 and the draft Law of Ukraine on Digital Content and Digital Services No. 6576 of 31.01.2022, which was already adopted as a basis and has on the basis The purpose of implementing the provisions of the said directive into national law. This work will focus on the study of another aspect of these normative legal acts-the question of modification of digital content and digital services. Analysis of recent researches and publications. The following researchers have studied the issue of modifying digital content and digital services: C. J., Martínez, M. Farinha, L. M. Savanets, K. V. Efremova, G. M. Stakhira, K. G. Nekit Purpose of the research is to provide a legal interpretation of the modification of digital content and digital services, in which it is necessary to find out the definition of this concept, the legal grounds for such modification, its types, as well as the rights, responsibilities and responsibilities related to the modification process. The additional purpose of the article is to compare certain provisions of the Directive 2019/770 with the draft Law of Ukraine No. 6576 of 31.01.2022. Article’s main body. In this scientific work, a study of the legal regulation of the issue of modification of digital content and (or) digital services was carried out in accordance with the provisions of Directive 2019/770 «On Certain Aspects Concerning Contracts for The Supply of Digital Content and Digital Services» and in comparison with the draft law «On Digital Content and Digital Services» No. 6576 dated January 31, 2022. The main goal of the article is to clarify the legal interpretation of this concept and analyze the compliance of the normative provisions in the cited normative legal acts. The definition of «modification» of digital content and services was determined within the scope of the goal, the legal grounds for such modification, its types, as well as the rights, duties and responsibilities associated with the modification process were clarified. Among other things, the legal interpretation of the concept of «digital content» and «digital services» was determined, and their approximate list was analyzed. Methods of providing digital content and digital services are defined. The concept of modification of digital content and digital services as a right and as a duty of the supplier is considered. The provisions regarding objective and subjective criteria of compliance have been studied. Clarified legal consequences in case of violation of the mentioned compliance requirements (means of consumer protection). The prerequisites that give the supplier the right to modify digital content are considered. Problematic issues related to user agreements (Terms of Use) were raised. It has been determined what should be understood by valid reasons allowing the modification of digital content or services. Considered requirements for informing the consumer about the introduction of certain modifications. In particular, the specifics related to informing the consumer using a durable information carrier are defined, in the event that the modification negatively affects the consumer’s access to digital content or digital service or their use. Finally, a comparison of the provisions of Directive 2019/770 and Draft Law No. 6576 dated 31.01.2022 was made, as a result of which a number of significant shortcomings were identified, which cause inconsistency between the mentioned legal acts. Conclusions and prospects for the development. The conducted analysis established the absence of a legal definition of «modification», however, it suggests considering under this concept any modification of digital content, services or a method of accessing them, which is characterized by the appearance of new features or properties while preserving the essence. Regarding the correspondence between the concepts of «digital content» and «digital service» between Directive 2019/770 and the Draft Law, it is possible to conclude that they are consistent. Both definitions are characterized by sufficient abstractness in order to increase the adaptability of regulatory legal acts to the rapid development of the digital market. However, the text of the directive allows you to understand the approximate list, in particular: computer programs, applications, video files, audio files, music files, digital games, e-books or other electronic publications, etc. As the study found, modification of digital content or service can be considered both a right and a legal obligation of the provider. As for the prerequisites for the modification (whether it is a right or an obligation), it can by its very nature only be applied to digital content or service provided or made available to the consumer during a certain period. As an obligation, modification is considered in the context that the provider is obliged to ensure the maintenance of compliance of the digital content or service with subjective and objective requirements, i.e., must make the necessary changes to prevent non-compliance or to eliminate already existing non-compliance. At the same time, the consumer has the right to use the provided means of protection in case of non-compliance. The use of modification as a supplier’s right must be based on several requirements designed to ensure minimum guarantees of fairness for the consumer. The main prerequisite for this is the conclusion of a contract between the supplier and the consumer (usually a “User Agreement” such as “Terms of Use”). In such a contract, valid reasons for making modifications must be provided (the list of valid reasons is not exhaustive, but must comply with the general principles of reasonableness and proportionality). In addition, any modification must be carried out without additional costs for the consumer (which, as it turned out, should be understood not only as direct financial costs as an increase in payment). Finally, the consumer must be clearly and comprehensibly informed about the modification (if necessary, using a durable medium). It was found that the Ukrainian Draft Law, despite the overwhelming compliance with Directive 2019/770, has a number of significant inconsistencies: the absence of a subjective requirement «to be updated as provided for in the contract », instead of which the Draft Law includes in the list of subjective compliance criteria the requirement to provide the latest version, which according to Directive 2019/770 is an objective criterion; uncoordinated settlement of the supplier’s responsibility for a public statement; completely ignoring the requirement for proper consumer notification of modifications using durable media in certain cases.