With the new year, two major reforms of the German Civil Code (BGB) came into force. Associated with this is, among other things, a right to updates for smartphones and devices with digital elements. Consumers also receive extensive warranty claims for digital content and services. The new rights also apply in part if consumers do not pay with money for so-called free apps, but provide their personal data in return, for example.
Implementation of an EU directive
Part of the amendments passed by the Bundestag in June is a law that adjusts the sales law in the BGB. The MEPs have thus implemented the EU Directive on the Sale of Goods of 2019. With the second law, the BGB is supplemented by specifications for contracts that have the provision of “digital products” as their object. It refers to the broad EU directive on digital content and services.
For goods with digital elements such as cell phones or laptops that a customer purchases from a dealer, an update obligation with updates or version changes (upgrades) will apply in the future. Sellers or suppliers must guarantee the functionality and IT security of the devices even after they have been handed over. The claim, which should bring about a longer usability and thus more sustainability, applies within a period of time that “can be expected as reasonable by the consumer”.
The legislature has not stipulated an exact period of time. The deadline should depend on the type and purpose of the goods and the digital functions. The parties can regulate details in the purchase contract, for example on the pure purchase of security updates or upgrades. In its cost calculation, the Federal Ministry of Justice assumed that updates “have to be made available for an average of five years”.
Longer reversal of the burden of proof in the event of defects
Should defects occur within one year of the delivery date, it will be assumed in future that they already existed. The consumer no longer has to prove this. In future, the manufacturer has to prove that the goods issued were in order. The corresponding reversal of the burden of proof has so far only been valid for six months in this country. Based on this requirement alone, the retail sector expects additional costs of around 130 million euros annually.
The guideline for the sale of goods applies to online and traditional retail. It includes the purchase of intelligent household appliances, smart toys, computers, smartphones, tablets, networked TVs, smartwatches, vacuum robots, fitness trackers and game consoles. The provisions not only extend to the actual product, but also to apps linked to it from the start.
An example: If a smart TV is advertised as containing a certain video application, this is to be seen as part of the sales contract. The claims also apply if the promised digital elements first have to be downloaded onto another device.
More rights after the purchase
The law on digital products also applies to the purchase of goods such as CDs, DVDs or other data carriers via the Internet or in stores as well as to downloading apps, music, videos, e-books and games. Services such as social networks, online applications and cloud storage are included.
Contracts for the provision of software for which the consumer pays no price and which the entrepreneur offers under a free and open source license (open source) are excluded. This exception only applies if the personal data provided by the user is processed by the provider “exclusively to improve the security, compatibility or interoperability of the software offered by the entrepreneur”.
If the digital product or service is defective, the consumer can now, under certain conditions, demand “supplementary performance” of the contract, terminate it, reduce the price and demand compensation or compensation for wasted expenses. Users can also request a full replacement. This applies, for example, if an app keeps crashing, the stream gets stuck or the booked cloud service does not respond.
Further adaptation of the legal system is necessary
The warranty claims “do not expire before twelve months after the end of the provision period”. The federal government had initially even set a period of two years. A manufacturer may only make serious changes to a digital product if there is a valid reason and the consumer does not incur any additional costs. Special provisions apply to the rental of digital products.
Federal Justice Minister Marco Buschmann (FDP) said of the reforms that the BGB, which dates back to the end of the 19th century, urgently needed an update: “We are finally receiving tailor-made legal requirements for contracts for digital products.” The Liberal emphasized that the amendment “would have to be followed by others in this legislative period”. There is still a lot to be done in adapting the legal system to the digital age
(mho)