New Rules for Digital Content and Digital Services

Romania has transposed the Digital Content Directive into national legislation. The new rules apply to any contract (e.g. sale or lease contract) where the trader supplies digital content (e.g. movies, photos, e-books) or digital services (e.g. apps, cloud storage, streaming services) to the consumer, even where the digital content or service is developed in accordance with the consumer’s specifications.

Scope of the Directive

The fast-paced development of technology leaves its mark upon how commerce is understood lately due to its irrefutable advantages for both consumers and businesses. In this context, the Emergency Ordinance no. 141/2021 which transposes Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services (the “Ordinance”) contributes to creating a digital single market, harmonizing at the European Union’s level the specific, essential, and binding contractual rights of consumers in the European Union. The national legal provisions ensuring the transposition of European principles entered into force on January 9, 2022.

Who is affected by these new provisions?

Considering that one of the main points pursued by the Ordinance is to boost the digital economy and to stimulate the overall growth, it is intended to apply for both consumers and businesses. However, it could be argued that it focuses in the first place on consumers, as it aims at ensuring better access to digital content while improving their protection when acquiring content or services with inherent digital content.

Basically, it applies to any contract where the trader supplies or undertakes to supply digital content or a digital service to the consumer and the consumer pays or undertakes to pay a price for such goods or services.

What are the goods/services covered?

The new legal provisions apply when digital content or digital services, as particularly defined by the legal framework, are traded. Basically, it applies to a broad range of digital products as they are considered to be any data produced and supplied in digital form.

On the other hand, ‘digital services’ are classified as services which either allow the consumer to create, process, store or access data in digital form or services which allow sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service.

Additionally, it also applies when the consumer, in return for the digital content or digital services supplied, provides personal data, except where such personal data provided are exclusively processed by the trader for fulfilling its contractual obligations or for allowing the trader to comply with applicable legal requirements.

How do the new measures protect consumers?

The Ordinance specifically ensures a series of coercive measures which should ensure a timely and compliant execution of the trader’s obligations.

To achieve a genuine single digital market, the Ordinance transposes certain EU rules which intend to harmonize contractual rights in certain core areas concerning the supply of digital content or digital services across the Union. Ensuring a transparent legal framework which clearly specifies consumers’ rights should be able to increase confidence in acquiring digital content or digital services when dealing with online transactions.