Consumer Rights Act: T minus 1 day—how does it apply to digital content?

Are you excited yet? Bought any fireworks? Been practicing how to link arms properly to Auld Lang Syne?

That's right: only one day to go until the Consumer Rights Act becomes law and the country is fizzing with excitement.

(Well, we are at Comet anyway.)

So what do you need to know?

We've already written briefly about how this new law applies to goods:

https://twitter.com/LexisUK_Comml/status/648519372672208896

And services:

https://twitter.com/LexisUK_Comml/status/648791798761029632

Today we'll take a quick look at digital content, which the law deals with specifically for the first time.

Sections 34 to 36 of the Act set out the standards applying to the supply of digital content.

Like for goods, the Act states that digital content must be:

  • of satisfactory quality
  • fit for purpose, and
  • as described

Unlike goods, there are also specific rules in section 40 of the Act which deal with modified content. For example, any modified content should continue to adhere to the above standards.

Fair enough.

But what happens if things go wrong?

If, in such a worst case scenario, the digital content doesn't conform with the contract, the consumer's rights are:

  • the right to repair or replacement
  • the right to a price reduction

The Act also provides for what happens if the digital content damages the consumer's device or other digital content and the damage wouldn't have happened if the trader had exercised reasonable care and skill: in this case, the trader must either repair the damage or compensate the consumer for the damage with an appropriate payment.

Of particular interest is the fact that the Act sometimes even extends to content that is given away for 'free'. In these cases, it is useful to have in your mind's eye the analogy, 'there's no such thing as a free lunch'. In other words, free stuff is more often than not linked to some other obligation. That 'free' anti-virus software which comes with that computer magazine is only 'free' if you buy the magazine. Of course, if the magazine is itself free that's a different story, although even then, traders hardly have a 'Get Out Of Jail Free' card. Develop and release some free software which is riddled with bugs and traders might well find themselves sued for negligence.

What's more, the Act now also applies to notices and not just to fiddly T&Cs. Guidance from the CMA makes it clear that long-winded acres of small print—aka many end-user licence agreements (EULAs)—may no longer be enforceable:

For legal purposes, the terms of EULAs may not in all cases be clearly part of the contract with the consumer. The effect of the Act is to establish that, even if they are not, they are still assessable for fairness and transparency, as consumer notices

So that's it for now.

Do you have any thoughts? Are you all ready for Thursday? Do let us know below.

Area of Interest