New rules for digital media and software

Companies should start revising their contracts for digital products early on. However, there may still be minor changes before the new EU rules come into force at the beginning of 2022.

The digital transformation has long challenged the courts. Some of the provisions of the BGB date back to the 19th century and were therefore never designed to regulate the sale of an e-book or the streaming of a video. With the implementation of EU Directive (EU) 2019/770, this is now set to change fundamentally. At the turn of the year, the Federal Ministry of Justice presented a draft bill that for the first time creates its own contract types for the provision of digital content and digital services, thereby making manufacturers and providers more responsible. From 2022, new rules for music, videos, e-books and software will apply.

Update obligation

The biggest change is the introduction of an update obligation. Manufacturers and providers will soon have to provide free updates and upgrades for digital products. Security updates must be delivered regularly, especially for software. How long software has to be maintained in this way is not clearly determined. According to the design, the duration depends on what the customer can reasonably expect. It is already inevitable that in many cases the courts will deal with developing concrete dates from this abstract formulation. The draft only gives a rough direction. An operating system should usually have to be usable for a considerably longer period than, for example, control software. The draft does not specify any more precise periods.

Manufacturers of smart home devices should already be prepared for a relatively long update obligation, as the duration depends on the normal usage time of the entire device. If the usual service life of a heating system is 20 to 30 years, a smart control unit would have to be supplied with updates for that long.

It is also important that consumers are actively informed about the updates. It is up to the manufacturers whether this is done by email or whether the software searches for updates independently. Simply providing downloads on the manufacturer’s site is not enough.

The update obligation also extends the period in which the seller and manufacturer are liable for damage. While the consumer’s warranty claims have usually expired within two years of the conclusion of the contract, damage due to a lack of security updates can still be asserted many years after the warranty period has expired.

Uniform consumer rights

The new contract types also create uniform rules for the rights of consumers in the event of defects and clarify the question of when a digital product is defective at all and when the products must be made available. The regulations should also apply if the content or services are free, but the customer “pays” with their data. For social networks in particular, it is made clear that the operators cannot escape the general regulations by not paying with money.

Conclusion & outlook

There may still be minor changes before they come into force at the beginning of 2022, but the guidelines already specify the cornerstones. Companies should start revising their contracts for digital products early on. And you should include the update obligations in the price calculation. Since their duration is still largely unclear, this will be fraught with many uncertainties.

Source: com! professional by

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