The Digital Content and Services and Sale of Goods Act enters into force from 01.01.2022
The adoption of the law is based on the need to transpose into Bulgarian legislation the provisions of Directive (EU) 2019/770 of the European Parliament and of the Council on certain aspects of contracts for the provision of digital content and digital services and Directive (EU) 2019/771 of the European Parliament and of the Council on certain aspects of contracts for the sale of goods.
Now, the sale of most of the goods sold by traders, together with the services for the provision of digital content and digital services, have been removed from the scope of the Consumers‘ Protection Act and placed under the regulations of the new law.
For which goods the new law will apply?
- any movable tangible item, including water, gas and electricity when offered for sale, packaged in a limited volume or quantity;
- any tangible movable items that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions (‘goods with digital elements’).
How the law defines digital service and digital content?
By law digital content means data which are produced and supplied in digital form and digital service means a service that allows the consumer to create, process, store or access data in digital form or a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service.
Fundamental for both Directives transposed by the Act is the concept of conformity, which includes both conformity of the goods, digital content or digital services with what is provided in the contract for the sale of goods or for the provision of digital content or digital services and conformity with the reasonable expectations of consumers. The two Directives contain subjective and objective conformity requirements which enable an assessment to be made as to the conformity of the digital content, digital service or goods. The law applies both to contracts for the sale of, as the legislator calls it in its explanatory memorandum – ‘classic’ goods, and to goods containing digital elements whose use requires the presence of digital content or a digital service (internet-connected TV, smartphone, internet-connected watch, smart fridges). For these goods, traders will be liable for the conformity of the embedded digital content and related digital services for the entire duration of the legal warranty or for the duration of the contract (if a digital service is provided for a fixed period of time).
Another new provision is the regulation of the hypothesis in which a user does not actually pay for the provision of digital content or service, but a condition for their provision is the provision of personal data about the user in a volume greater than the minimum required by law for the trader in order for him to meet the applicable regulatory requirements. In this case, the consumer will fall under the protection of consumer law, even though they have not paid with money, but by providing personal data. Thus, any trader who uses consumer data for purposes other than the provision of some content is affected by the law, regardless of whether the trader derives some direct economic benefit from collecting the data or is simply collecting the data to include the consumer on its marketing list.
So far, the Consumers’ protection Act has only regulated the so-called individual/subjective requirements (to be fit for the specific purpose, to correspond to the description, etc.), but the newly introduced objective requirements will apply to both goods and services covered by the law. Some of these are – to be fit for the purposes for which goods of the same kind are ordinarily used, to have the qualities of the sample or model which the seller has made available to the consumer, to be supplied with the relevant accessories, to have the qualities and other characteristics which are common to goods of the same kind and which the consumer can reasonably expect.
In addition, the rules on commercial warranty in the Consumers’ protection Act are repealed and the rules on claims under it remain applicable to the extent that they apply to goods and services outside the scope of the new Act. In respect of goods and services within the scope of the new law – the new complaints regime will apply. The regime is different depending on whether the claims are made in respect of goods or in respect of digital content or a digital service.
What remains outside the scope of the new Law?
The law does not apply to goods that are subject to sale enforced by a court, as well as to sales of abandoned or confiscated goods, second-hand goods sold at public auction, live animals. With regard to services –
- contracts for the provision of services other than digital services, whether or not the trader uses a digital format or digital means to provide the final result of the service or to deliver or transmit it to the consumer,
- contracts for electronic communications, contracts for healthcare services,
- contracts for gambling services,
- contracts for financial services,
- contracts for software offered by a trader through an open source license where the user does not pay a price or with their personal data (which may be processed by the trader solely for the purpose of improving the security, compatibility or interoperability of the specific software),
- contracts for the provision of digital content where the digital content is made available to the public by means other than the transmission of signals as part of a creative performance or event, for example digital film screenings and
- contract for provision of digital content in accordance the Access to Public Information Act.