Activities of Jan Philipp ALBRECHT related to 2015/0287(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content
Amendments (37)
Amendment 38 #
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 or by the supplier collecting and processing such data. Those specific business models apply in different forms in a considerable part of the market. I, often without the knowledge or consent of the consumer, and in breach of the relevant provisions of the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council. This Directive should only cover such counter-performance in the form of personal data that is in line with Regulation (EU) 2016/679, in particular with regard to Article 7(4). In those limited cases, 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 ensured. 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 not depend on whether a price is paid for the specific digital content in question.
Amendment 43 #
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, this Directive should also apply only to contracts where the supplier requests and the consumer actively provides 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' photos, or where the consumer consents to the processing of data by the supplier. Such consent should be understood as defined in Regulation (EU) 2016/679. This Directive should not apply to situations 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 also 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.
Amendment 49 #
Proposal for a directive
Recital 17
Recital 17
Amendment 51 #
Proposal for a directive
Recital 18
Recital 18
(18) Contracts may include general terms and conditions of the supplier that need to be accepted by the consumer. For some digital content, suppliers often describe the service and measurable service targets in a service level agreement. These service level agreements are generally appended to the main contract and form an important component of the contractual relationship between the supplier and the consumer. They should be covered by the definition of a contract under this Directive, and should thus comply with the rules laid down therein. In cases where consent to the processing of personal data is given as a counter-performance other than money, the contract should contain the information about the processing pursuant to Regulation (EU) 2016/679, but clearly distinguishable from other elements of the contract. In addition, easily understandable icons should illustrate the main elements of the processing of personal data.
Amendment 53 #
Proposal for a directive
Recital 22
Recital 22
(22) The protection of individuals with regard to the processing of personal data is governed by Directive 95/46/ECRegulation (EU) 2016/679 of the European Parliament and of the Council31 and by Directive 2002/58/EC of the European Parliament and of the Council32 which are fully applicable in the context of contracts for the supply of digital content. Those Directives already establish a legal framework in the field of personal data in the Union. The implementation and application of this Directive should be made in full compliance with that legal framework. _________________ 31 OJ L 281, 23/11/1995119, 04/05/2016, p. 31 - 50)85 32 OJ L 201, 31.7.2002, p. 37–47. [to be replaced by the General Data Protectionupcoming e-Privacy Regulation, once adopted]. 32 OJ L 201, 31.7.2002, p. 37–47.
Amendment 57 #
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, and therefore it cannot be assumed that consumers could sufficiently comprehend and assess those benchmarks, 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.
Amendment 73 #
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 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 data should mean in the case when the counter- performance consists of personal data, that the supplier should take all measures 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/ECRegulation (EU) 2016/679 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 97 #
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 countfreely choses to give consent to the processing of his or her- perfsonal data orm ancey other than money in the form of personal data or any other datadata by the supplier, instead of paying a price, insofar this is possible in line with Regulation (EU) 2016(679), in particular with regard to Article 7(4) thereof.
Amendment 103 #
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 providethe extent the processing of personal data by the processing of which is strictlysupplier is 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 other 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 commercialother purposes.
Amendment 106 #
Proposal for a directive
Article 3 – paragraph 7
Article 3 – paragraph 7
7. If any provision of this Directive conflicts with a provision of another Union act governing a specific sector or subject matter, the provision of that other Union act shall take precedence over this Directive. .
Amendment 111 #
Proposal for a directive
Article 3 – paragraph 8
Article 3 – paragraph 8
8. This Directive is without prejudice to the protection of individuals with regard to the processing of personal data as laid out in Regulation (EU) 2016/679 of the European Parliament and the Council and in Directive 2002/58 of the European Parliament and the Council.
Amendment 112 #
Proposal for a directive
Article 3 – paragraph 9 a (new)
Article 3 – paragraph 9 a (new)
9 a. Where, in the context of supplying digital content within the scope of this Directive, the law of another Member State than the one of the consumer's permanent residence applies, the supplier shall inform the consumer accordingly before entering into the contract.
Amendment 115 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content immediately after the conclusion of the contract, unless the parties have agreed otherwise, and without prejudice to Article 16(m) of Directive 2011/83/EU of the European Parliament and the Council1a. 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. _________________ 1a OJ L304, 22/11/2011, p. 64-88
Amendment 119 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. In order to conform with the contract, the digital content shall, where relevant:
Amendment 121 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the supplier at the time of the conclusion of the contract and which the supplier accepted, or any particular purpose which the consumer could reasonably expect;
Amendment 123 #
Proposal for a directive
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) be updated as stipulated by the contract or as necessary to guarantee the characteristics provided for in points (a) and (b), in particular continuity and security.
Amendment 129 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) where relevant, any existing international technical standards or, in the absence of such technical standards, applicable industry codes of conduct and good practices; and
Amendment 131 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
(b a) any existing security best practices for information systems and digital environments;
Amendment 132 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Where the contract stipulates that the digital content shall be supplied over a period of time, the digital content shall be in conformity with the contract throughout the duration of that period, including, where necessary, security updates to be provided by the supplier.
Amendment 133 #
Proposal for a directive
Article 6 – paragraph 5 a (new)
Article 6 – paragraph 5 a (new)
5 a. The contract shall include all relevant elements enabling the conformity of the digital content to be assessed, as well as all relevant information regarding the processing of personal data, in particular as provided for in Articles 12 and 13 of Regulation (EU) 2016(679), to be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language. Information on the processing of personal data shall be accompanied by the standardised icons pursuant to Article 12(8) of Regulation (EU) 2016/679.
Amendment 135 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The consumer shall cooperate with the supplier to the extent possible and necessary to determine the consumer's digital environment. The obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer. Where the consumer fails to cooperate, the burden of proof with respect to the non-conformity with the contract shall be on the consumer. The consumer shall not have to cooperate where the supplier requests access to private or personal information and communication.
Amendment 136 #
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; and
Amendment 137 #
Proposal for a directive
Article 10 – paragraph 1 – point b a (new)
Article 10 – paragraph 1 – point b a (new)
(b a) any lack of security which was known to the supplier or could reasonably have been known to it according to security best practices for information systems and digital environments; and
Amendment 139 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The supplier shall bring the digital content in conformity with the contract pursuant to paragraph 1 within a reasonable timeout undue delay from the time the supplier has been informed by the consumer about the lack of conformity with the contract and without any significant inconvenience to the consumer, taking account of the nature of digital content and the purpose for which the consumer required this digital content.
Amendment 140 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
5. TWithout prejudice to other legal grounds for terminating the contract, 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 proof 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.
Amendment 142 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1 a. Where Article 3(1a) applies, a withdrawal of the consent to the processing of personal data pursuant to Article 7(3) of Regulation (EU) 2016/679 shall imply a termination of the contract by the consumer.
Amendment 144 #
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 expected in order to refrain from the use of the counter- performance other than money 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 others who continue to make use of the content, insofar as the supplier is able to determine which counter- performance and which data had been provided by the consumer. The supplier shall not process more personal data than necessary for the execution of the contract for the mere purpose of being able to link it to the consumer in case he or she terminates the contract. Where personal data of the consumer have been transferred or disclosed to third parties, the supplier shall inform those of the termination of the contract. The supplier shall inform the consumer about those third parties if the consumer requests it;
Amendment 148 #
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 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 structured, commonly used data formatand machine-readable data format and to transmit those content to another supplier without hindrance from the supplier to which the personal data have been provided;
Amendment 155 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economic damage to the digital environment of the consumer caused by a lack of conformity with the contract or a failure to supply the digital content. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 156 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The Member States shall lay down detailed rules for the exercise of the right to damages. When laying down those rules, Member States may provide for a reduced or increased degree of liability for damages based on objecitve criteria for assessing the efforts made by the supplier to avoid non-conformity of the digital content and the occurrence of the damage, such as security best practices or the state of the art of technology.
Amendment 158 #
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 shall be supplied over the 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, and continuity and security, to the extent those alternations adversely affect access to or use of the digital content by the consumer, only if:
Amendment 159 #
Proposal for a directive
Article 15 – paragraph 1 – point a a (new)
Article 15 – paragraph 1 – point a a (new)
(a a) it is necessary for the security of the content in line with best practices;
Amendment 160 #
Proposal for a directive
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) the consumer is notified reasonably in advance of the modification by an explicit notice on a durable medium;
Amendment 162 #
Proposal for a directive
Article 15 – paragraph 1 – point d
Article 15 – paragraph 1 – point d
(d) upon termination of the contract in accordance with point (c), the consumer is provided with technical means to retrieve all content provided in accordance with Article 13(2)(c) or Article 16(4)(a).
Amendment 163 #
Proposal for a directive
Article 16 – paragraph 4 – point a
Article 16 – paragraph 4 – point a
(a) the supplier shall take all measures which could be expected in order to refrain from the use of other counter- performance than money 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 others who continue to make use of the content. insofar as the supplier is able to determine which counter-performance and which data had been provided by the consumer. The supplier shall not process more personal data than necessary for the execution of the contract for the mere purpose of being able to link it to the consumer in case he or she terminates the contract;
Amendment 168 #
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 any content provided by the consumer and any other 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 and data without significant inconvenience, in reasonable time and in a structured, commonly used data formatand machine-readable data format and have the right to transmit those content and data to another supplier without hindrance from the supplier to which the content have been provided; and
Amendment 172 #
Proposal for a directive
Article 18 – paragraph 2 – point c a (new)
Article 18 – paragraph 2 – point c a (new)
(c a) organisations which are active in the field of the protection of data subjects' rights and freedoms with regard to the protection of their personal.