Sales of digital content or services
Do you sell products with digital content, or do you provide digital services? Then the following new rules apply:
- As a seller, you are responsible for a properly functioning product.
- You must provide (security and software) updates.
- If the digital product does not work, you need to provide a solution. A solution can be to replace, repair, or refund the digital product. This also applies to digital elements in the delivered product. For example, in a smart fridge or smart TV.
The new rules apply to all countries within the European Union (EU). The rules came into effect in the Netherlands on 27 April 2022.
Overview of new laws and regulations
Consumers are entitled to software and security updates. This means that you are obligated to provide your customers with updates so that the product or service continues to work properly. This applies to these products:
- a smart device, for example, a smart washing machine
- a digital service (such as a streaming service)
- digital content (such as an e-book)
Customers can expect updates if this is in proportion to the product and the price. This is described in the new rules as 'reasonable'. What your customer can reasonably expect depends on the situation. For example, for an expensive, smart washing machine you must provide updates for a longer period than for a digital game on a telephone.
You are not responsible for updates if you clearly notify your customer in advance that you do not provide updates and if the customer consents to this. This is called the 'double explicitness check' (dubbele uitdrukkelijkheidstoets).
Note: Your customer is responsible for completing or installing the updates correctly themselves. You must, however, provide your customer with clear information on how to install the update.
Read more about your update obligation.
You are responsible for the proper functioning of the product during the first year after the sale. Unless you can demonstrate that the product broke down after you sold it.
If you cannot demonstrate this, you must provide repair, replacement, or a refund free of charge. This is called reversed burden of proof. The allocated period for this is 6 months to 1 year. The amendment to the law also applies to existing agreements.
Read more about the reversed burden of proof.
Do you give customers a product or service in exchange for their personal data? Your customer then has the same rights as if they had purchased it with money.
You are obliged to provide a solution if the digital product does not work properly. Such as supplying a new product or a different solution.
You must also handle customer data with care and comply with the European Privacy Regulation (GDPR).
Read more about rights for consumers who 'pay' with personal data.
If you provide an extra guarantee, such as a durability guarantee, you are liable for this. You must also abide by any guarantees and promises you make in advertising. The warranty certificate must meet several requirements.
Read more about the guarantee rules.
Smart devices
Do you sell home automation (devices with a digital element), such as smart TVs or smart fridges? Then you are also responsible for ensuring that the digital element works properly.
Does the device work, but the digital content or service does not? If the digital content and service are not part of the device, the dealer or supplier of the digital content is responsible.
For example:
Your smart refrigerator is connected to the internet. The customer has installed a grocery shopping app themselves, but it does not work. The supplier of the app is then responsible for this, not you.
Second-hand products
When buying a second-hand product, the customer is also entitled to a well-functioning product. The reversal of the burden of proof has also been extended to 1 year for second-hand products.