Bundestag votes for the right to updates and “fair consumer contracts”
For goods with digital elements such as cell phones or laptops that a customer purchases from a retailer, an update obligation will apply in the future, for example with updates or updates. version changes (upgrades). This means that vendors or suppliers of equipment must ensure the functionality and IT security of devices even after delivery. The Bundestag passed a corresponding bill on Friday evening with votes from the government factions of the CDU / CSU as well as the AfD and FDP. The Greens were against it, the left abstained.
Valid for products and related applications
With this decision, the Parliament wishes to transpose the European directive on the sale of goods of 2019 into national law. At the same time, he passed a second bill, which concerns the implementation of the Directive on digital content and services. Consumers receive extended warranty claims, for example for repairs, returns and, in turn, updates, whether they traditionally pay or – in return, for example for access to an online service – submit their personal data.
The Directive for the sale of goods applies to online and traditional retail. It includes the purchase of smart home appliances, smart toys, computers, smartphones, tablets, networked TVs, smart watches, robot vacuums, fitness trackers and game consoles. The provisions apply not only to the product itself, but also to the applications linked to it from the outset.
If, for example, a smart TV is advertised as containing a specific video application, this should be considered part of the sales contract. The claims also apply if the promised digital elements must first be downloaded to another device.
No specific deadline
The right to receive necessary updates applies within a timeframe which “can reasonably be expected by the consumer”. The Bundestag did not indicate a specific period. The timeframe should depend on the type and destination of the digital goods and functions. The parties can settle the details in the purchase contract, for example on the pure purchase of updates or security upgrades. In its costing, the Federal Justice Department assumed that updates “should be provided for an average of five years.”
If any defects occur within one year from the date of delivery, it will be presumed in the future that they already existed. The consumer no longer has to prove it. In the future, the manufacturer will have to prove that the delivered goods were in order. The corresponding reversal of the burden of proof has so far only been valid for six months in this country. Because of this requirement alone, the retail sector expects additional costs of around 130 million euros per year.
The Digital Content and Services Directive, which the Bundestag has also transposed into national law, has a broader basis. It will apply from the beginning of 2022 both to the purchase of goods such as CDs, DVDs or other data media via the Internet or in stores and to the downloading of applications, music, videos, electronic books and games. Services like social media, online apps, and cloud storage services are included.
Open source outside
Contracts for the supply of software for which the consumer does not pay a price and which the entrepreneur offers under a free and open source license are excluded. The condition is that the personal data provided by the user are processed by the supplier “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 may, under certain conditions, demand “further performance” of the contract, terminate it or reduce the price thereof and demand compensation or compensation for unnecessary expenses. These warranty claims were “not to expire before the expiration of twelve months after the end of the provision period”, while the federal government had provided for a period of two years. A manufacturer can only make serious changes to a digital product if there is a valid reason and the consumer does not incur any additional costs. Special rules apply to the rental of digital products.
Emmanouil Kampitakis of the Chaos Computer Club (CCC) greeted during a hearing that consumer rights in digital services should become an integral part of the civil code. However, it lacked rules on the avoidance of technically perfect e-waste, the operation of devices regardless of the manufacturer, the specification of a guaranteed update period, and the right to repair.
Better protection against scams
The Bundestag also adopted one with the votes of the CDU / CSU, SPD and AfD bill for “fair consumer contracts”. The FDP and the Greens opposed it, the left again abstained. MEPs want to better protect consumers against scams with sabotaged electricity and gas contracts and excessively long durations. The latter concerns services such as telephone and Internet, streaming, fitness studios or subscriptions to newspapers and music.
Boring and expensive automatic contract renewals should be a thing of the past with the initiative. In the future, consumers will be able to cancel their monthly payments more easily and without time constraints and upgrade to better deals after the initial term expires. The government also planned that service providers would have to bid for one year with the same service at a slightly more expensive price alongside a two-year contract. The coalition deleted this passage because the CDU and CSU crossed the line.
In the future, consumers will be able to officially assign requests for trade terms, for example for flight delays, to third parties such as “paralegals” and thus get their money back faster. Representatives are also introducing a mandatory cancellation button for online contracts. The corresponding confirmation button should be labeled with the words “cancel now” or with clear wording and clicking on it should suffice to cancel an order.
Use of government data made easy
The Bundestag also adopted a bill to reform laws on e-government and open data. The aim is to facilitate the use of public sector data in accordance with EU requirements as well as to increase their economic potential and that of civil society. The objective is to provide administrative data in an open-by-default manner. However, there is no right to disclosure of information.
The coalition has made it clear here that data that falls under the law should, if possible, be openly created on the principle of “conceptual and standard”. In addition, authorities with fewer than 50 employees and those in the indirect federal administration should also appoint an open data coordinator. Exceptions remain for the main customs offices and secret services. Special transitional rules apply to small offices. Public and private companies providing services of general interest are also registered. These are companies in the water, transport and energy sectors that are subject to public procurement and concession regulations or operate public passenger transport services.
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