44 Amendments of Dita CHARANZOVÁ related to 2015/0287(COD)
Amendment 160 #
Proposal for a directive
Recital 11
Recital 11
(11) The Directive should address problems across different categories of digital content and its supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content, this notion as used in this Directive should be broader than in Directive 2011/83/EU of the European Parliament and of the Council.30 In particular it should cover services which allow the creation, processing or storage of data. While there are numerous ways for digital content to be supplied, such as transmission on a durable medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital content or access to the use of social media, this Directive should apply to all digital content independently of the medium used for its transmission. Differentiating between different categories in this technologically fast changing market is not desirable because it would hardly be possible to avoid discriminations between suppliers. A level-playing field between suppliers of different categories of digital content should be ensured. However tThis Directive should notalso apply to digital content which is embedded in goods in such a way that it operates as an integral part of the goods and its functions are subordinate to the main functionalities, unless the seller proves that the lack of conformity lies in the hardware of the goods. _________________ 30 OJ L 304, 22.11.2011, p.64. OJ L 304, 22.11.2011, p.64.
Amendment 175 #
Proposal for a directive
Recital 13
Recital 13
(13) In the digital economy, information about individuals is often and increasingly seen by market participants as having a value comparable to money. Digital content is often supplied not in exchange for a price but against counter-performance other than money, i.e. by giving access to personal data or other data. Those specific business models apply in different forms in a considerable part of the market and can provide value to consumers by reducing costs and increasing innovation and choice of digital content and services. Introducing a differentiation depending on the nature of the counter-performance would discriminate between different business models; it would provide an unjustified incentive for businesses to move towards offering digital content against data. A level playing field should be ensuredOn the other hand, providing the same rights to consumers when they supply personal data by way of counterperformance other than money might incentivise consumers to opt for the supply of digital content in exchange for the supply of personal data rather than the payment of money. There should therefore be a balance between the rights and remedies provided for. In addition, defects of the performance features of the digital content supplied against counter- performance other than money may have an impact on the economic interests of consumers. Therefore, the applicability of the rules of this Directive should as far as possible not depend on whether a price is paid for the specific digital content in question.
Amendment 190 #
Proposal for a directive
Recital 14
Recital 14
(14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, tit should be made clear that the mere act of navigating the internet, as an open platform for information and communication, which often involves the passive collection of data, is not in itself enough for this Directive to apply. This Directive should apply only to contracts where the supplier requests and the consumer actively provides personal data, such as name and e-mail address or photos, directly or indirectly to the supplier for example, through individual registration or on the basis of a contract which allows access to consumers' personal data such as photos. This Directive should therefore not apply to situations where the supplier requires no registration or identification to access or use the digital content or service concerned, where the supplier collects data necessary for the digital content to function in conformity with the contract, for example geographical location where necessary for a mobile application to function properly, or for the sole purpose of meeting legal requirements, for instance where the registration of the consumer is required for security and identification purposes by applicable laws. This Directive should alsolikewise not apply to situations where the supplier collects information, including personal data, such as the IP address, or other automatically generated information such as information collected and transmitted by a cookie, without the consumer actively supplying it, even if the consumer accepts the cookie. It should also not apply to situations where the consumer is exposed to advertisements exclusively in order to gain access to digital content. It should in addition be made clear that where a supplier requests consent to, and the consumer agrees to, the processing of the latter's personal data in accordance with Regulation (EU) 2016/679, this does not in itself constitute a contract under this Directive.
Amendment 198 #
Proposal for a directive
Recital 15
Recital 15
(15) Content generated by consumers should be treated on the same basis as any other digital content that the consumer provides or stores throughout the period of duration of the contract, such as music and video files, pictures, games or applications. Content generated by consumers, can be of a certain value to consumers if it is portable to another service. It can also comprises a wide range of examples includingthings such as digital images, video and audio files, blogs, discussion forums, text-based collaboration formats, posts, chats, tweets, logs, podcasting, content created on mobile devices, content created in the context of online virtual environments, ratings and collections of links referring to online content.
Amendment 230 #
Proposal for a directive
Recital 23
Recital 23
(23) There are various ways for digital content to reach consumers. It is opportune to set simple and clear rules as to the modalities and the time for performing the supplier's main contractual obligation to supply digital content to the consumer. Considering that the supplier is not in principle responsible for acts or omissions of an internet provider or an electronic platform which the consumer selected for receiving the digital content, it should be sufficient for the supplier to supply the digital content to this third party. With regard to the time of supply, in line with market practices and technical possibilities, the digital content should be supplied immediatwithout undue delay, unless the parties decide to agree otherwise in order to cater for other supply models.
Amendment 240 #
Proposal for a directive
Recital 25
Recital 25
(25) In cases where the contract does not stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content with the contract, it is necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases, the conformity with the contract should be assessed considering the purpose for which digital content of the same description would normally be used and what can be reasonably expected by the consumer. Consumers' expectations vary widely depending on the type and the use of digital content and services and should therefore be objectively ascertained, having regard to the nature and purpose of the contract, the circumstances of the case, in particular in light of the rapidly evolving business models of companies in the digital sector and the fast-moving pace of innovation of digital content and services, and to the usages and practices of the parties involved.
Amendment 248 #
Proposal for a directive
Recital 29
Recital 29
(29) Many types of digital content are supplied over a period of time. For instance, consumers access cloud services over a period of time. It is therefore important to ensure that the digital content is in conformity with the contract throughout the duration of the contract. Moreover, given the frequent improvement of digital content, notably by updates, the version of digital content supplied to the consumer should be the most recent one available at the time of the conclusion of the contract.
Amendment 259 #
Proposal for a directive
Recital 32
Recital 32
(32) Due to the specific nature of digital content with its high complexity as well as the supplier's better knowledge and access to know how, technical information and high-tech assistance, it is the supplier who is in a better position than the consumer to know the reasons for the digital content not being in conformity with the contract. The supplier is also in a better position to assess whether the lack of conformity with the contract is due to incompatibility of the consumer's digital environment with the technical requirements for the digital content. Therefore in case of a dispute it should be for the supplier to prove that the digital content is in conformity with the contract within the first six months from the time when the digital content is supplied, unless the supplier proves that the consumer's digital environment is not compatible with the digital content, and with the exception of long-term contracts where the burden of proof should remain on the supplier throughout the duration of the contract. Only where the supplier proves that the consumer's digital environment is not compatible with the interoperability and other technical requirements, it should it be for the consumer to prove that the digital content is not in conformity with the contract.
Amendment 297 #
Proposal for a directive
Recital 37
Recital 37
(37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content to conformity is not possible and the non- conformity impairs the main performance features of the digital content. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer or, where the digital content is supplied not in exchange for a price but against access to personal data provided by the consumer, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to access it after termination of the contract. Fulfilling the obligation to refrain from using personal data should mean in the case when the counter- performance consists of personal data, that the supplier should take all measures necessary in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. Without prejudice to obligations of a controller under Directive 95/46/EC the supplier should not be obliged to undertake any further steps in relation to data which the supplier has lawfully provided to third parties in the course of the duration of the contract for the supply of the digital content.
Amendment 306 #
Proposal for a directive
Recital 38
Recital 38
(38) Upon termination, the supplier should also refrain from using the content generatprovided by the consumer. However, in those cases where more than one consumer has generated particular content, the supplier ishould be entitled to continue to use the content generated by the consumer where those other consumers make use of it.
Amendment 311 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the supplier should allow the consumer to retrieve all personal data uploaded by the consumer, produced by the consumer with the use of the digital content or generated through the consumer's use of the digital content, provided that the data in question have not been deleted or rendered anonymous. This obligation should extend to personal data which the supplier is obliged to retain under the contract for the supply of the digital content as well as to personal data which the supplier has effectively retained in relation to the contract. The supplier should also allow the consumer to retrieve the content provided by the latter through the use of the digital content, where technically feasible, and where the content is portable to another service, to the extent that it has been retained by the supplier.
Amendment 319 #
Proposal for a directive
Recital 40
Recital 40
(40) Where, following the termination of the contract because of a lack of conformity with the contract, the supplier provides the consumer with the technical means to retrieve the data, the consumer should be entitpersonal data, and where it is technically feasible and portabled to retrieve the dataother services, the content, free of any costs, for example the cost of employing a commonly used data format with the exception of costs generated by the consumer's own digital environment including the costs of a network connection as they are not specifically linked with the retrieval of eithe datar the personal data or the content.
Amendment 329 #
Proposal for a directive
Recital 43
Recital 43
(43) Due to its nature the digital content is not subject to wear and tear while being used and it is often supplied over a period of time rather than as a one-off supply. It is, therefore, justified for digital content supplied over a period of time as part of long-term contracts not to provide a period during which the supplier should be held liable for any lack of conformity which exists at the time of the supply of the digital content. Consequently Member States should refrain from maintaining or introducing such a period. However for digital content supplied as a one-off supply, it should be justified to introduce a limitation period of two years as from the time of supply of the digital content. Member States should remain free to rely on national prescription rules in order to ensure legal certainty in relation to claims based on the lack of conformity of digital content.
Amendment 343 #
Proposal for a directive
Recital 45
Recital 45
(45) Due to technological or other reasons the supplier might be compelled to change features of the digital content supplied over a period of time. These changes are often to the advantage of the consumer as they improve the digital content. Consequently, the parties to the contract may include respective clauses in the contract which allow the supplier to undertake modifications. However, where such modifications negatively affect the way the consumer benefits fromalter the main performance features of the digital content, they may disturb the balance of the contract or the nature of the performance due under the contract to an extent that the consumer may not have concluded such a contract . Therefore, in such cases these modifications should be subject to certain conditions and should not alter unilaterally, and without a valid reason, the conformity of the digital content with the contract.
Amendment 356 #
Proposal for a directive
Recital 47
Recital 47
(47) The lack of conformity with the contract of the final digital content as supplied to the consumer is often due to one of the transactions in a chain, from the original designer to the finala third-party supplier. While the finalthird-party supplier should be liable towards the consumer in case of lack of conformity with the contract between these two parties, it is important to ensure that the supplier has appropriate rights vis- a-vis different members of the chain of transactions in order to be able to cover his liability towards the consumer. However, it should be for the applicable national law to identify the members of the chains of transactions against which the finalthird-party supplier can turn and the modalities and conditions of such actions.
Amendment 425 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
8. 'digital environment' means hardware, and digital content and any network connection to the extent that they are within the control of the user;
Amendment 455 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter- performance other than money in the form of personal data or any other data.
Amendment 459 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. This Directive shall apply to any contract for the supply of digital produccontent developed according to consumer's specifications.
Amendment 476 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. This Directive shall not apply to digital content provided against counter- performance other than money to the extent the supplier requests the consumer to provide personal data the processing of which is strictly necessary for the performance of the contract or for meeting legal requirements and the supplier does not further process them in a way incompatible with this purpose. It shall equally not apply to any otherpersonal data the supplier requests the consumer to provide for the purpose of ensuring that the digital content is in conformity with the contract or of meeting legal requirements, and the supplier does not use that data for commercial purposwhich is neither communicated, transferred, shared, licensed or otherwise transmitted by the supplier to third parties.
Amendment 489 #
Proposal for a directive
Article 3 – paragraph 5 – point e a (new)
Article 3 – paragraph 5 – point e a (new)
(e a) the provision of digital content under a free or open licence insofar as no contractual relations and obligations exist beyond the adherence to the terms of the licence.
Amendment 538 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content immediatwithout undue delay after the conclusion of the contract, unless the parties have agreed otherwise. The supply shall be deemed to take place when the digital content is supplied to the consumer or, where point (b) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlier.
Amendment 572 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. To the extent that the contract does not stipulate, where relevant, in a clear and comprehensive manner, the requirements for the digital content under paragraph 1, the digital content shall be fit for the purposes for which digital content of the same description would normally be used, including its functionality, interoperability and other performance features such as accessibility, continuity and security and meet the standards which the consumer could reasonably expect, taking into account:
Amendment 590 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
Amendment 639 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The burden of proof with respect to the conformity with the contract at the time indicated in Article 10 shall be on the supplier within the first six months from the time when the digital content is supplied.
Amendment 670 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) any lack of conformity which exists at the time the digital content is supplied; andThe consumer shall be entitled to a remedy for any lack of conformity with the contract of the digital content where that lack of conformity becomes apparent within two years from the time of supply of the digital content.
Amendment 676 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
(c) where the contract provides that the digital content shallis to be supplied over a period of time, any lack of conformity which occurs during the duration ofat period. The burden of proof shall remain on the supplier throughout that period.
Amendment 718 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point a a (new)
Article 12 – paragraph 1 – subparagraph 2 – point a a (new)
(a a) whether the digital content is supplied in exchange for a price or for counter-performance other than money;
Amendment 759 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
5. The consumer may terminate the contract only if the lack of conformity with the contract impairs functionality, interoperability and other main performance features of the digital content such as its accessibility, continuity and security where required by Article 6 paragraphs (1) and (2). The burden of proofving that the lack of conformity with the contract does not impair functionality, interoperability and other main performance features of the digital content shall be on the supplier. In cases where the withdrawal of consent to the processing of personal data in accordance with Regulation (EU) 2016/679 affects access to or the use of the digital content, the consumer shall also be entitled to terminate the contract.
Amendment 774 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any means agreed at the time of conclusion of the contract.
Amendment 777 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any interpersonal communication service or postal means.
Amendment 793 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the supplier shall take all measures which could be expectedare necessary in order to refrain from the use of the counter-performance other than moneypersonal data which the consumer has provided in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer, with the exception of the content which has been generated jointly by the consumer and by others who continue to make use of the content;
Amendment 803 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) upon request by the consumer, the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generatedhis or her personal data , provided the data in question have not been deleted or rendered anonymous, and all content provided by the consumer through the consumer's use of the digital content, where technically feasible, to the extent that datacontent has been retained by the supplier and is portable to other services. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a commonly used data format;
Amendment 809 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other reasonably identifiable and retrievable data produced or generated through the consumer's use of the digital content to the extent that data has been retained by the supplier. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a commonly used data format;
Amendment 826 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Upon termination, the supplier may prevent any further use of the digital content by the consumer, in particular by making the digital content not accessible to the consumer or disabling the user account of the consumerdisabling the consumer's user account, without prejudice to point (c) of paragraph 2.
Amendment 878 #
Proposal for a directive
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. Where the contract provides that the digital content shallis to be supplied over thea period of time stipulated in the contract, the supplier may alter functionality, interoperability and other main performance features of the digital content, such as its accessibility, continuity and security, to the extent those alternations adverseat this does not alter unilaterally, affect access to or usend without a valid reason, the conformity of the digital content bywith the consumertract, only if :
Amendment 888 #
Proposal for a directive
Article 15 – paragraph 1 – point c
Article 15 – paragraph 1 – point c
Amendment 905 #
Proposal for a directive
Article 15 – paragraph 2 – point b
Article 15 – paragraph 2 – point b
(b) the supplier shall refrain from the use of the counter-performance other than moneypersonal data which the consumer has provided in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided bycontent provided by the consumer, with the exception of content which has been generated jointly by the consumer and others who continue to make use of the consumertent.
Amendment 920 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any meansby means agreed at the time of conclusion of the contract. The termination shall become effective 14 days after the receipt of the notice.
Amendment 921 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any interpersonal communication service or postal means. The termination shall become effective 14 days after the receipt of the notice.
Amendment 941 #
(a) the supplier shall take all measures which could be expectednecessary in order to refrain from the use of other counter- performance than money personal data which the consumer has provided in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided bycontent provided by the consumer, with the exception of content which has been generated jointly by the consumer and others who continue to make use of the consumertent;
Amendment 945 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(b) upon request by the consumer, the supplier shall provide the consumer with technical means to retrieve all any contenthis or her personal data , provided by the consumer and any other data producdata in question have not been deleted or grenderated through the consumer's use of the digital contentanonymous, and all content provided by the consumer where technically feasible, to the extent this dataat the content has been retained by the supplier and is portable to other services . The consumer shall be entitled to retrieve the content, without significant inconvenience, in reasonable time and in a commonly used data format; and
Amendment 948 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(b) the supplier shall provide the consumer with technical means to retrieve all anyreasonably identifiable and reasonably retrievable personal content provided by the consumer and any other data, other than operational data, produced or generated through the consumer's use of the digital content to the extent this data has been retained by the supplier. The consumer shall be entitled to retrieve the content without significant inconvenience, in reasonable time and in a commonly used data format; and
Amendment 959 #
Proposal for a directive
Article 16 – paragraph 5
Article 16 – paragraph 5
5. Upon termination, the supplier may prevent any further use of the digital content by the consumer, in particular by making the digital content not accessible to the consumer or disabling the user account of the consumerdisabling the consumer's user account, without prejudice to paragraph (4) point (b)oint (b) of paragraph 4.
Amendment 984 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital content against counter-performance other than that covered by this Directive, in particular supplied against advertisement or indirect collection of data. , active provision of personal data or indirect collection of data. The report shall also assess the impact of this Directive on consumer behaviour and on general practices of companies, in particular with regard to the scope of this Directive.