From Conformity to Sustainability: Understanding the Implications of Digital Content Modifications under Directives 2019/770 and 771

Abstract

Directive 2019/770, of 20 May, on certain aspects concerning contracts for the supply of digital content and digital services addresses the possibility for the trader to modify features of the digital content or digital service supplied or made accessible to the consumer over a period of time. Considering the fast-evolving character of digital elements, modifications can be advantageous for the consumer. Such modifications can be divided into two categories: those necessary to maintain the conformity of the digital content or service (the updates referred to in the Directive) and those that are unnecessary or evolutionary, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract. The modifications that are necessary to keep conformity with the contract are also foreseen in the Sale of Goods Directive (Directive 2019/771), given that the digital content or digital service incorporated in or interconnected with the goods is constantly developing. However, this directive dos not make any provision for unnecessary or evolutionary modifications. The main purpose of this article is to examine the category of non-necessary modifications referred to exclusively in the Directive 2019/770. It also analyses the possibility of modifying the digital element that accompanies the good (in categories of good with digital elements). The analysis is approached from the perspective of unfair commercial practices and the need to address the premature wear and tear of the so-called goods with digital elements.