Digital Content Directive transposed into Croatian law – Commentary

introduction
Croatian Law on Digital Content and Digital Services
New rights and more protection for consumers
Comment

introduction

The law on certain aspects of contracts for the supply of digital content and digital services (the law on digital content and digital services) entered into force on 1 January 2022(1) and transposes the EU Digital Content Directive.(2)

The EU Digital Content Directive establishes a single set of rules within the EU market regarding contracts for the supply of digital content (such as computer programs and mobile applications, as well as video and audio files. in digital form) or digital services (such as cloud and social networks), in particular:

  • contract compliance rules; and
  • recourse in the event of non-compliance of the digital content or digital service or in the event of failure to supply.

The EU Digital Content Directive applies to any contract whereby a trader provides digital content or digital services to the consumer and the consumer pays or agrees to pay a price. It also applies when the consumer does not pay a price but provides or undertakes to provide personal data to the trader, unless the personal data provided is processed solely for the purpose of providing the digital content or the digital service. or for the professional to comply with the requirements.

Although the EU’s Digital Content Directive aims to fully harmonize the supply of digital content and digital services at EU level, there are many openness clauses that Member States can use and which they want. give some freedom.

Croatian Law on Digital Content and Digital Services

In this regard, the Croatian Digital Content and Digital Services Act has almost fully transposed the provisions of the EU Digital Content Directive. However, Croatia has adapted the provision concerning the conditions of formation, existence and validity of a contract in accordance with its relevant legislation in force, the Law on Consumer Protection and the Law on Civil Liabilities. In addition, in accordance with its obligation under the EU Digital Content Directive, Croatia declared the State Inspectorate as the competent body to ensure the application of national provisions transposing it.

In accordance with the EU Digital Content Directive, the Digital Content and Digital Services Act therefore prescribes rules on:

  • the conformity of the digital content or digital services with the contract;
  • the means of delivering digital content or digital services;
  • modification of digital content or digital services;
  • legal remedies for breach of any provision of the contract;
  • the prescription of competent bodies to oversee the implementation of the law on digital content and digital services (i.e. inspectors of the state inspectorate); and
  • the prescription of criminal penalties in the event of a merchant’s breach of the law on digital content and digital services.

However, the Digital Content and Digital Services Act does not apply:

  • contracts for the purchase and sale of goods (regulated by European Directive 2019/771);
  • Internet access;
  • text messages (such as SMS messages), except digitally independent interpersonal communication services;
  • health care;
  • gambling services;
  • financial services;
  • software offered by the merchant under a free and open license (when the price is not paid and the personal data provided by the consumer is processed solely for the purpose of improving this particular software); and
  • digital content when it is part of a performance or event, such as digital film screenings and digital content provided by public sector bodies.

New rights and more protection for consumers

The new rules set out in the Law on Digital Content and Digital Services are expected to bring new rights and increased protection to Croatian consumers. Only 8% of Croatian consumers shop online in other EU countries and generally missed the potential for a wider choice of products and better prices. The new legislation aims to change that. Increased competition should lead to lower consumer prices across the European Union, which should lead to increased consumer welfare.

For example, a Croatian consumer who has paid to download a movie (for example, via a streaming service such as Netflix) and finds the sound and picture quality of a movie to be poor may ask the provider to provide them with a another version of the film that works correctly. If this is not possible or if the supplier does not, they can choose between keeping the film and getting a price reduction, or requesting a full refund.

As another example, when a Croatian consumer purchases a new smartphone advertised for their high-resolution camera from an online electronics store in another EU country, but the camera takes low-resolution photos, they can go back to the online seller and ask them to resolve the issue within two years from the day they purchased the smartphone. If the seller doesn’t or can’t fix the issue, they can choose to keep the phone and get a price reduction, or return the phone for a full refund.

Comment

Although the EU’s Digital Content Directive aims to harmonize the EU’s digital market, it remains to be seen whether the planned full harmonization will be achieved. It will also be interesting to see how the rights and obligations of consumers and traders will affect the business environment and consumer protection in Croatia.

For more information on this topic, please contact Hana Fiala Where Ivana manovelo at Maćešić & Partners by phone (+385 51 215 010) or email ([email protected] Where [email protected]). The Maćešić & Partners website can be accessed at www.macesic.hr.

End Notes

(1) Official Gazette No. 110/2021.

(2) Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects of contracts for the supply of digital content and digital services (Text with EEA relevance.).

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