Scope

The Digital Content Directive (DCD) and Norwegian implementation apply to contracts where traders supply digital content or digital services to consumers. Digital content includes data produced and supplied in digital form, such as music, videos, apps, games, and e-books. Digital services encompass services that allow the consumer to create, process, store, or access data in digital form, or services that allow the sharing of data or any other interaction with data in digital form provided by the consumer.

The DCD covers both paid-for digital content or services and those provided in exchange for personal data, except where the personal data is exclusively processed for the purpose of supplying the digital content or service or for compliance with legal requirements.

Relevance

Prior to implementing the DCD in Norway, the provision of digital services to consumers was largely determined based on unwritten contractual law principles and by analogy from statutory rules. With the DCD, consumer rights and enhanced, while the ability of economic operators to create their own standard terms is limited.

By imposing transparency requirements and limiting the right to amend services, increase fee and operate with long agreement terms, the DCD protect consumers from potentially unfair practices and to ensure a higher degree of transparency and fairness in the digital market. It also seeks to harmonize digital contract law across the EEA, reducing uncertainty and creating a more predictable legal environment for both consumers and businesses.

Key obligations

The DCD and Norwegian implementation impose mandatory requirements to consumer contract and quality standards.

With respect to quality of digital content and services, the Norwegian implementation requires suitability for purpose, regular updates, conformity with the consumer’s reasonable expectations, and compliance with legal requirements at the time the contract was entered. It is noteworthy that the act does not impose any availability requirements (such as service level commitments). For any deviations from the quality standards, the consumer must be made “specifically aware” of these and “expressly and specifically” accept them.

Defects and delays are made subject to remedies common from Norwegian law (rectification, price reduction, termination for breach and damages for economic loss). “Sole remedy” and limitation of liability-clauses typically seen in digital services standard terms may thus be unlawful.

The Norwegian implementation further limits the right to amend fees or services. The providers’ ability to amend services beyond what is necessary to comply with the agreement and quality standards presupposes i) a legal basis in the agreement; ii) no extra charge for the consumer; and iii) informing the consumer in a clear manner. The consumer is also given the right to terminate for breach if changes affect the service in a “non-insignificant” manner. The consumer may also cancel the agreement upon price changes beyond “what the change in the consumer price index would suggest”.

Finally, the maximum agreement term is set to six months, but exceptionally up to 12 months in “special cases”. In addition, if a consumer has agreed to periodic payments for an ongoing service and fails to make a payment within a 6-month period after the payment is due, the contract is considered terminated.