Contract for the provision of the digital content
As of 6th January 2023, the amendment to the Act No. 89/2012 Coll., the Civil Code (the Act No. 374/2022 Coll.) introducing a new legislation on consumer protection has become effective.
In this connection and in order to transpose the so-called Digital Directive (Directive (EU) 2019/770), a completely new type of contract is introduced into the Civil Code (“CC”), i.e. the contract for the provision of the digital content (Sec. 2389a et seq. of the CC). The subject matter of this contract is the provider's obligation to make an item in digital form (digital content) available to the user for his or her own use and the user's obligation to pay remuneration for this. If the use of the digital content also requires the authorisation to exercise an intellectual property right, the relevant provisions of the licence shall also apply.
Digital content is data created and provided in digital form (e.g. video files, audio files, music files, computer programs, applications, digital games, e-books, etc.).
Basic obligations of a digital content provider are following:
- make the digital content available without undue delay after the conclusion of the contract, unless agreed otherwise,
- to make available to the user the latest version of the digital content available at the time of conclusion of the contract,
- ensure that the agreed updates of the digital content are provided to the user,
- ensure that the necessary updates are provided to the user to keep the digital content free of defects for the duration of the commitment and that the user is notified of their availability.
The obligations are subject whether the content of the contract is continuous performance over a certain period of time or one-off performance or repeated one-off performance. A one-off performance is defined as a performance consisting of a single act or a series of acts, including cases in which the user acquires the right to use the digital content on a permanent basis, and lays down special rules for it (Sec. 2389f of the CC). The difference between a continuous and a one-off performance lies primarily in the liability of the provider. Whereas in the case of continuous performance the provider is liable for defects for the duration of the obligation, in the case of a one-off performance the provider is in principle only liable for defects that the digital content had at the time it was made available to the user.
The regulation of the digital content contract also applies to relationships other than consumer-business relationships. Contracts concluded with consumers are therefore supplemented by special rules that place greater emphasis on the provider's liability for the quality of the content supplied (Sec. 2389g et seq. of the CC). For example, the situation where the user provides or undertakes to provide personal data to the provider in lieu of remuneration (e.g. setting up a social network account where the consumer provides data on his/her movements on the network in exchange for the digital content or digital service) is also regulated.
According to the transitional provisions of the amendment, the existing legal regulation shall generally apply to legal relations and rights and obligations that were established before the amendment came into force. Nevertheless, an exception is provided for the provision of the digital content and digital services. In this case, the new legislation will also apply to the performance of the contract that will take place after the amendment comes into force, even if the contract was concluded before the amendment came into force.