Digital Content

Digital content refers to intangible goods supplied electronically, such as software, mobile apps, games, e-books, music, video and digital templates. Sales of these to consumers are subject to distance contract rules. Services supplied electronically are assessed separately as digital services.

The Withdrawal Exception

Under the Distance Contracts Regulation, intangible goods delivered immediately to the consumer are exceptions to the right of withdrawal. Digital content supplied on physical media, such as software and audio or video recordings whose packaging has been opened, is also excepted.

To rely on the exception, it must be recorded that the consumer:

• Expressly consented to the start of delivery,
• Was informed that they would lose the right of withdrawal.

If content is supplied without this consent, the consumer may exercise the right of withdrawal. In practice this is achieved with a separate checkbox at payment and repeating the consent in the order confirmation.

Information

The pre-contractual information should also cover the functionality of the digital content, applicable technical protection measures and compatible hardware and software. Failing to state system requirements clearly leaves the seller exposed in complaints about incompatibility.

App Stores

App store rules also apply to sales through app stores, but they do not remove the consumer’s statutory rights. For in-app purchases, especially in apps aimed at children, the purchase flow must be transparent.

Defective Digital Content

Digital content that lacks promised features or does not work is subject to the rules on defective goods even where the withdrawal exception applies. Licence terms and usage rights should be set out clearly in the user agreement.