The Act on the provision of digital content and services and the sale of goods (the Act) implemented into the Bulgarian law the provisions of Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services and Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC.
Scope and objectives of the Act
The Act aims to ensure the protection of consumers’ economic interests in the provision of digital content and digital services and in the sale of goods to consumers.
According to the Act in event of defect in the goods or discrepancy of the digital content or service, the seller of the goods or the supplier of the digital content/services is liable to the consumer.
The Act not only envisages a range of consumer rights, but also guarantees their protection by stating that any arrangement which excludes or restricts the rights of consumers in advance is void.
The provisions of the Act are applicable in the case of an agreement between a trader and a consumer for the provision of digital content and digital services or an agreement for the sale of goods.
Goods within the meaning of the Act are:
- any movables, including the one to be made or produced;
- ‘Goods containing digital elements’, i.e. any tangible movable item that contains digital content or a digital service or is interconnected with digital content or a digital service in such a way that the absence of the digital content or digital service would prevent the good from performing its functions (smartphone; smart home appliances; smart watches, etc.).
Under the Act, sellers of such goods will be liable for the conformity of the embedded digital content and related digital services for the full period of the statutory warranty or for the duration of the agreement.
The provisions under Chapter Three of the Act regarding the sale of goods will be applicable regardless of whether the digital content or service is provided by the seller of the goods or by a third party.
This will always be the case when the digital content or digital service is embedded in or interconnected with the goods and is provided with the goods within the sale agreement. Therefore, Chapter three provisions will not be applicable where the digital content/digital service is provided separately from the goods, where the provisions of Chapter Two will apply.
Where there is doubt as to whether the embedded or interconnected digital content/service forms part of the sale agreement, that digital content/service shall be deemed to be included in the agreement.
Digital content and digital service
According to the Act, the content of these two concepts is as follows:
- “Digital content” means data that is produced and made available in digital form,
- “Digital service” is a service that enables:
(a) the user to create, process, store, or access data in digital form, or
(b) the sharing or any other interaction of data in digital form entered or created by the user or other users of this service.
The Act applies both where a trader provides digital content or a digital service to a consumer in return for the latter’s obligation to pay a price, and where the consumer’s consideration consists of providing personal data to a trader. This takes into account the fact that more and more users have access to digital content or digital services even without paying a price for it, as exemplified by social networks as well as some electronic platforms.
The user’s personal data constitutes consideration for the digital content or digital service provided, only if this data is not necessary for the trader to provide the service/content or to fulfil its legal obligations.
Objective requirements for conformity
For the first time, the Act introduces the so-called objective requirements for conformity.
According to these requirements, the digital content or the digital service should generally:
- be fit for the purposes for which digital content or digital services of the same kind are normally used;
- be in the quantity and have the qualities and performance characteristics, including in terms of functionality, compatibility, availability, continuity, and security, that are customary for digital content or digital services of the same type and that the user can reasonably expect;
- be provided together with all accessories and instructions which the user can reasonably expect to receive;
- correspond to the trial version or preview of the digital content or digital service provided by the trader before the conclusion of the agreement.
The objective requirements for conformity of goods provide that the goods should:
- be fit for the purposes for which goods of the same kind are normally used;
- have the qualities of the sample or model which the seller has made available to the consumer before the conclusion of the contract and correspond to the description of that sample or model, where applicable;
- be supplied with the appropriate accessories, including packaging and installation or other instructions that the user can reasonably expect to receive, where applicable, and
- be of a quantity and have the qualities and other characteristics, including with respect to durability, functionality, compatibility, and safety, which are usual for goods of the same kind and which the consumer may reasonably expect.