Today, when suppliers sell any type of digital content online (apps, music, e-books etc.), they have to comply with several pieces of legislation in the EU, such as the Consumer Rights Directive, the E-Commerce Directive, the Data Protection Directive (soon-to-be replaced by the General Data Protection Regulation). However, further rules included in the proposed EU Directive on certain aspects concerning contracts for the supply of digital content are currently being discussed inside and outside the EU Institutions. The Directive focusses on rights and obligations related to the integration of digital content, a broader definition of digital content, remedies and termination of contracts. In an effort to discuss the rules and implications further, the European Parliament’s Liberal (ALDE) group organised a hearing on the topic. The hearing was held in the European Parliament on 27th April and co-hosted by the ALDE Shadow Rapporteurs (draftsmen) Antanas Guoga MEP for the Internal Market and Consumers (IMCO) Committee and Jean-Marie Cavada MEP for the Legal Affairs (JURI) committee. Catriona Meehan, the Alliance’s EU Policy Director spoke on a panel with representatives from FEDMA, DIGITALEUROPE, GSMA and the European Commission in order to voice the concerns of developers, particularly as regards the concept of data as contractual counter-performance (i.e. something a consumer gives in return for a service) and the correct/incorrect integration of digital content into the digital environment.
In a few words, the new set of rules propose a stricter level of liability for the content supplier when the digital content does not install or function correctly, or it damages the digital environment in which it should be integrated (i.e. downloaded, installed). On a different note, the proposed rules treat personal data (and ‘any other data’) as something a consumer willingly hands over in return for a service, as if the consumer were ‘buying’ a service and paying with their data. In this way, the proposals view data as a ‘counter-performance’ for the supply of free services, such as free-to-download apps and content.
With regard to this particular issue Catriona posed questions concerning the applicability of this rule to mixed business models, regarding paid-for apps that also collect data of any kind, and also in general about all the upcoming business models that will allow new technologies to arise and grow.
It was extremely helpful to compare the views of app developers’ with those expressed by the representatives of the Commission and other stakeholders, as similar concerns and further questions were raised during the discussion.
Participants focussed on how the proposed directive defines issues like “digital content” and “supplier of digital content” and, by defining as such, identifying who are the recipients of the rules and what activities are actually regulated. As a result of these wide definitions, including several players in the development chain and classes of digital content (including services and any type of data), the Commission risks a lack of clarity and understanding. The definition of a supplier in directive is a central issue; Catriona concluded her intervention by saying, “the key is to keep the ecosystem healthy, and policy makers have a chance to make it even better than it is now”.
Mobile apps are a crucial market today and app developers are an essential workforce for the future. We welcomed the opportunity to discuss the issues that can impact the market and look forward to debating those further.
Our views and thoughts are gathered in our position paper.
Have a look at it and do not hesitate to tell us what you think.
Policy Manager, EU