Digital Content and Sales or Service contracts under EU Law and Belgian/French Law

Author:Hervé Jacquemin
Position:Professor at the University of Namur, Head of eCommerce Unit, Research Centre on Information, Law and Society (CRIDS), Member of the Brussels Bar
Pages:27-38
SUMMARY

The rather novel concept of "digital content" is defined and regulated both in the Consumer Rights Directive and in the Proposal for a Directive on certain aspects concerning contracts for the supply of digital content (dated 9 December 2015). In this paper, the concept is presented, as well as the reasons why the European legislator adopted (or is willing to adopt) protection measures to the... (see full summary)

 
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Digital Content and Sales or Service contracts under EU Law and Belgian/French Law
2017
27
1
Digital Content and Sales or Service contracts
under EU Law and Belgian/French Law
by Hervé Jacquemin, Professor at the University of Namur, Head of eCommerce Unit – Research Centre on
Information, Law and Society (CRIDS), Member of the Brussels Bar
© 2017 Hervé Jacquemin
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Her vé Jacquemin, Digital Content and Sales or Ser vice contracts under EU Law and Belgian/French
Law, 8 (2017) JIPITEC 27 para 1.
Keywords: Digital content; consumer protection; goods; services; sales contract; service contract; articulation
issues between concepts; French and Belgian Civil Law
and other relevant concepts under EU Law and some
national laws (of civil Law countries). First, a compar-
ison between the notion of digital content and other
concepts used at the EU level (and in the correspond-
ing legal framework adopted in the Member States),
in regulations protecting the consumers (the con-
cepts of “goods”, “services”, “sales” or “services con-
tracts”, etc.) will be carried out. The concept will then
be compared with the classical notions used in Bel-
gian (and French) Contract Law, especially in the Civil
Code (“contract of enterprise”, “sales contract”, etc.).
Abstract: The rather novel concept of “dig-
ital content” is defined and regulated both in the
Consumer Rights Directive and in the Proposal for
a Directive on certain aspects concerning contracts
for the supply of digital content (dated 9 Decem-
ber 2015). In this paper, the concept is presented, as
well as the reasons why the European legislator ad-
opted (or is willing to adopt) protection measures to
the benefit of consumers in this context. Relying on
this analysis, the paper will further discuss the artic-
ulation issues between the notion of “digital content”
A. Introduction
1
The concept of “digital content” was introduced into
the EU legal framework by the directive 2011/83/EU
on consumer rights1 (hereafter, “Consumer Rights
Directive”), where it is dened as “data which are
produced and supplied in digital form”.2
2
This denition is broad and, accordingly, the
examples of “digital content” are numerous. Some of
them are provided by the Recital 19 of the Consumer
1 Directive 2011/83/EU of the European Parliament and of the
Council of 25 October 2011 on consumer rights, amending
Council Directive 93/13/EEC and Directive 1999/44/EC of
the European Parliament and of the Council and repealing
Council Directive 85/577/EEC and Directive 97/7/EC of the
European Parliament and of the Council, OJ L 304, 22.11.2011.
2 Art. 2, 11°, of the Consumer Rights Directive.
Rights Directive: “computer programs, applications,
games, music, videos or texts, irrespective of
whether they are accessed through downloading or
streaming, from a tangible medium or through any
other means”. Social networks, archiving services
in the Cloud, or some OTT services (WhatsApp for
instance) could also be added.
3 Consumers are increasingly becoming recipients of
digital content and, considering that the protection
mechanisms already enacted in the sector-specic
regulations or in the horizontal regulations
protecting consumers are no longer sufcient, some
additional legal provisions especially dedicated to
digital content (albeit very few) were introduced in
the Consumer Rights Directive.3 Namely: information
3 On the legal measure (to be) enacted in order to protect
the consumer of digital content, see F. Coppens, M. DeMoulin,

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