Draft amendment to the Polish act on consumer rights in connection with the implementation of the directive on digital content and digital services

In May 2019, the European Union issued two directives, namely the one on the contractual aspects of the supply of digital content and digital services (“Directive on digital content“, EU 2019/770) and on the contractual aspects of the sale of goods (“Directive on the sale of goods“), EU 2019/771).

The main objective of both Directives is to contribute to the proper functioning of the internal market and ensure a high level of consumer protection, in particular by establishing rules common to all Member States on contracts for the supply of digital content or digital services concluded between traders and consumers. This is especially about introducing into Polish law provisions on the compliance of digital content or digital service with the contract, in the event of non-compliance of the digital content or digital service with the contract.

The Ministry of Justice has prepared a draft amendment to the provisions of the Act on Consumer Rights and the Civil Code, the purpose of which is to implement the provisions of EU directives related to the pursuit of greater protection for consumers concluding contracts for the supply of digital content or digital services with entrepreneurs. Poland is obliged to implement both directives by 1.7.2021, with effect from 1.1.2022.

The planned amendment provides for the introduction to the Consumer Law of a definition of a contract for the supply of digital content or a digital service, according to which the contract is to be considered as such, under which the entrepreneur undertakes to provide the consumer with digital content or a digital service, including also made according to the consumer’s instructions, and undertakes to pay the price or provide personal data, unless the personal data provided by the consumer is processed by the trader solely for the purpose of: providing digital content or a digital service, improving the security, compatibility or interoperability of software offered on the basis of a free and open license, or complying with a statutory obligation.

The amendment also specifies the rights and obligations of parties to contracts for the supply of digital content or digital services, which is related to the implementation of Directive 2019/770 / EU. Importantly, the trader will be required to provide the consumer with digital content or a digital service immediately after the conclusion of the contract. In addition, the trader is required to inform the customer about updates, including those relating to security, necessary to keep the digital content or digital service in compliance with the contract.

The main objective of both Directives is to contribute to the proper functioning of the internal market and ensure a high level of consumer protection, in particular by establishing rules common to all Member States on contracts for the supply of digital content or digital services concluded between traders and consumers.