{"title":"在指令2019/770和第6576号法律草案的理解下修改数字内容和数字服务","authors":"Illia Mamaiev","doi":"10.37772/2518-1718-2023-2(42)-9","DOIUrl":null,"url":null,"abstract":"Problem setting. In May 2019, the European Parliament and the Council adopted the 2019/770 Directive «On Certain Aspects Concerning Contracts for the Supply of Digital Content and Digital Services», which came into force for EU Member States on January 1, 2022. The outlined directive makes many changes in the legal relationship between consumers and suppliers of digital content or services, which performs several positive functions at once: 1) elimination of legal gaps in the defined field; 2) improvement of consumer protection as a more vulnerable side of legal relations; 3) harmonization of disparate national regulation on a single approach; 4) promoting interstate economic relations through reducing market barriers. It is fair to point out that Ukraine also needs to eliminate the above problems. In addition to the need for national legislation on the Acquis of the European Union, the adaptation of domestic regulation to the above directive should contribute to the development of the digital market and to increase legal certainty for both consumers and for suppliers of digital content or services. In some of the latest works, the author conducted a comparative analysis of the regulation of personal data between Directive 2019/770 and the draft Law of Ukraine on Digital Content and Digital Services No. 6576 of 31.01.2022, which was already adopted as a basis and has on the basis The purpose of implementing the provisions of the said directive into national law. This work will focus on the study of another aspect of these normative legal acts-the question of modification of digital content and digital services. Analysis of recent researches and publications. The following researchers have studied the issue of modifying digital content and digital services: C. J., Martínez, M. Farinha, L. M. Savanets, K. V. Efremova, G. M. Stakhira, K. G. Nekit Purpose of the research is to provide a legal interpretation of the modification of digital content and digital services, in which it is necessary to find out the definition of this concept, the legal grounds for such modification, its types, as well as the rights, responsibilities and responsibilities related to the modification process. The additional purpose of the article is to compare certain provisions of the Directive 2019/770 with the draft Law of Ukraine No. 6576 of 31.01.2022. Article’s main body. In this scientific work, a study of the legal regulation of the issue of modification of digital content and (or) digital services was carried out in accordance with the provisions of Directive 2019/770 «On Certain Aspects Concerning Contracts for The Supply of Digital Content and Digital Services» and in comparison with the draft law «On Digital Content and Digital Services» No. 6576 dated January 31, 2022. The main goal of the article is to clarify the legal interpretation of this concept and analyze the compliance of the normative provisions in the cited normative legal acts. The definition of «modification» of digital content and services was determined within the scope of the goal, the legal grounds for such modification, its types, as well as the rights, duties and responsibilities associated with the modification process were clarified. Among other things, the legal interpretation of the concept of «digital content» and «digital services» was determined, and their approximate list was analyzed. Methods of providing digital content and digital services are defined. The concept of modification of digital content and digital services as a right and as a duty of the supplier is considered. The provisions regarding objective and subjective criteria of compliance have been studied. Clarified legal consequences in case of violation of the mentioned compliance requirements (means of consumer protection). The prerequisites that give the supplier the right to modify digital content are considered. Problematic issues related to user agreements (Terms of Use) were raised. It has been determined what should be understood by valid reasons allowing the modification of digital content or services. Considered requirements for informing the consumer about the introduction of certain modifications. In particular, the specifics related to informing the consumer using a durable information carrier are defined, in the event that the modification negatively affects the consumer’s access to digital content or digital service or their use. Finally, a comparison of the provisions of Directive 2019/770 and Draft Law No. 6576 dated 31.01.2022 was made, as a result of which a number of significant shortcomings were identified, which cause inconsistency between the mentioned legal acts. Conclusions and prospects for the development. The conducted analysis established the absence of a legal definition of «modification», however, it suggests considering under this concept any modification of digital content, services or a method of accessing them, which is characterized by the appearance of new features or properties while preserving the essence. Regarding the correspondence between the concepts of «digital content» and «digital service» between Directive 2019/770 and the Draft Law, it is possible to conclude that they are consistent. Both definitions are characterized by sufficient abstractness in order to increase the adaptability of regulatory legal acts to the rapid development of the digital market. However, the text of the directive allows you to understand the approximate list, in particular: computer programs, applications, video files, audio files, music files, digital games, e-books or other electronic publications, etc. As the study found, modification of digital content or service can be considered both a right and a legal obligation of the provider. As for the prerequisites for the modification (whether it is a right or an obligation), it can by its very nature only be applied to digital content or service provided or made available to the consumer during a certain period. As an obligation, modification is considered in the context that the provider is obliged to ensure the maintenance of compliance of the digital content or service with subjective and objective requirements, i.e., must make the necessary changes to prevent non-compliance or to eliminate already existing non-compliance. At the same time, the consumer has the right to use the provided means of protection in case of non-compliance. The use of modification as a supplier’s right must be based on several requirements designed to ensure minimum guarantees of fairness for the consumer. The main prerequisite for this is the conclusion of a contract between the supplier and the consumer (usually a “User Agreement” such as “Terms of Use”). In such a contract, valid reasons for making modifications must be provided (the list of valid reasons is not exhaustive, but must comply with the general principles of reasonableness and proportionality). In addition, any modification must be carried out without additional costs for the consumer (which, as it turned out, should be understood not only as direct financial costs as an increase in payment). Finally, the consumer must be clearly and comprehensibly informed about the modification (if necessary, using a durable medium). It was found that the Ukrainian Draft Law, despite the overwhelming compliance with Directive 2019/770, has a number of significant inconsistencies: the absence of a subjective requirement «to be updated as provided for in the contract », instead of which the Draft Law includes in the list of subjective compliance criteria the requirement to provide the latest version, which according to Directive 2019/770 is an objective criterion; uncoordinated settlement of the supplier’s responsibility for a public statement; completely ignoring the requirement for proper consumer notification of modifications using durable media in certain cases.","PeriodicalId":133481,"journal":{"name":"Law and innovations","volume":"1 1","pages":"0"},"PeriodicalIF":0.0000,"publicationDate":"2023-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Modification of Digital Content and Digital Services Within the Understanding of the Directive 2019/770 and Draft Law № 6576\",\"authors\":\"Illia Mamaiev\",\"doi\":\"10.37772/2518-1718-2023-2(42)-9\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Problem setting. In May 2019, the European Parliament and the Council adopted the 2019/770 Directive «On Certain Aspects Concerning Contracts for the Supply of Digital Content and Digital Services», which came into force for EU Member States on January 1, 2022. The outlined directive makes many changes in the legal relationship between consumers and suppliers of digital content or services, which performs several positive functions at once: 1) elimination of legal gaps in the defined field; 2) improvement of consumer protection as a more vulnerable side of legal relations; 3) harmonization of disparate national regulation on a single approach; 4) promoting interstate economic relations through reducing market barriers. It is fair to point out that Ukraine also needs to eliminate the above problems. In addition to the need for national legislation on the Acquis of the European Union, the adaptation of domestic regulation to the above directive should contribute to the development of the digital market and to increase legal certainty for both consumers and for suppliers of digital content or services. In some of the latest works, the author conducted a comparative analysis of the regulation of personal data between Directive 2019/770 and the draft Law of Ukraine on Digital Content and Digital Services No. 6576 of 31.01.2022, which was already adopted as a basis and has on the basis The purpose of implementing the provisions of the said directive into national law. This work will focus on the study of another aspect of these normative legal acts-the question of modification of digital content and digital services. Analysis of recent researches and publications. The following researchers have studied the issue of modifying digital content and digital services: C. J., Martínez, M. Farinha, L. M. Savanets, K. V. Efremova, G. M. Stakhira, K. G. Nekit Purpose of the research is to provide a legal interpretation of the modification of digital content and digital services, in which it is necessary to find out the definition of this concept, the legal grounds for such modification, its types, as well as the rights, responsibilities and responsibilities related to the modification process. The additional purpose of the article is to compare certain provisions of the Directive 2019/770 with the draft Law of Ukraine No. 6576 of 31.01.2022. Article’s main body. In this scientific work, a study of the legal regulation of the issue of modification of digital content and (or) digital services was carried out in accordance with the provisions of Directive 2019/770 «On Certain Aspects Concerning Contracts for The Supply of Digital Content and Digital Services» and in comparison with the draft law «On Digital Content and Digital Services» No. 6576 dated January 31, 2022. The main goal of the article is to clarify the legal interpretation of this concept and analyze the compliance of the normative provisions in the cited normative legal acts. The definition of «modification» of digital content and services was determined within the scope of the goal, the legal grounds for such modification, its types, as well as the rights, duties and responsibilities associated with the modification process were clarified. Among other things, the legal interpretation of the concept of «digital content» and «digital services» was determined, and their approximate list was analyzed. Methods of providing digital content and digital services are defined. The concept of modification of digital content and digital services as a right and as a duty of the supplier is considered. The provisions regarding objective and subjective criteria of compliance have been studied. Clarified legal consequences in case of violation of the mentioned compliance requirements (means of consumer protection). The prerequisites that give the supplier the right to modify digital content are considered. Problematic issues related to user agreements (Terms of Use) were raised. It has been determined what should be understood by valid reasons allowing the modification of digital content or services. Considered requirements for informing the consumer about the introduction of certain modifications. In particular, the specifics related to informing the consumer using a durable information carrier are defined, in the event that the modification negatively affects the consumer’s access to digital content or digital service or their use. Finally, a comparison of the provisions of Directive 2019/770 and Draft Law No. 6576 dated 31.01.2022 was made, as a result of which a number of significant shortcomings were identified, which cause inconsistency between the mentioned legal acts. Conclusions and prospects for the development. The conducted analysis established the absence of a legal definition of «modification», however, it suggests considering under this concept any modification of digital content, services or a method of accessing them, which is characterized by the appearance of new features or properties while preserving the essence. Regarding the correspondence between the concepts of «digital content» and «digital service» between Directive 2019/770 and the Draft Law, it is possible to conclude that they are consistent. Both definitions are characterized by sufficient abstractness in order to increase the adaptability of regulatory legal acts to the rapid development of the digital market. However, the text of the directive allows you to understand the approximate list, in particular: computer programs, applications, video files, audio files, music files, digital games, e-books or other electronic publications, etc. As the study found, modification of digital content or service can be considered both a right and a legal obligation of the provider. As for the prerequisites for the modification (whether it is a right or an obligation), it can by its very nature only be applied to digital content or service provided or made available to the consumer during a certain period. As an obligation, modification is considered in the context that the provider is obliged to ensure the maintenance of compliance of the digital content or service with subjective and objective requirements, i.e., must make the necessary changes to prevent non-compliance or to eliminate already existing non-compliance. At the same time, the consumer has the right to use the provided means of protection in case of non-compliance. The use of modification as a supplier’s right must be based on several requirements designed to ensure minimum guarantees of fairness for the consumer. The main prerequisite for this is the conclusion of a contract between the supplier and the consumer (usually a “User Agreement” such as “Terms of Use”). In such a contract, valid reasons for making modifications must be provided (the list of valid reasons is not exhaustive, but must comply with the general principles of reasonableness and proportionality). In addition, any modification must be carried out without additional costs for the consumer (which, as it turned out, should be understood not only as direct financial costs as an increase in payment). Finally, the consumer must be clearly and comprehensibly informed about the modification (if necessary, using a durable medium). 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引用次数: 0
摘要
问题设置。2019年5月,欧洲议会和理事会通过了2019/770指令《关于数字内容和数字服务供应合同的某些方面》,该指令将于2022年1月1日对欧盟成员国生效。概述的指令对数字内容或服务的消费者和供应商之间的法律关系进行了许多改变,这同时发挥了几个积极的作用:1)消除了所定义领域的法律空白;2)完善消费者保护这一法律关系中较为薄弱的环节;3)以单一方式协调不同的国家监管;4)通过减少市场壁垒促进国家间经济关系。需要指出的是,乌克兰也需要消除上述问题。除了需要就欧洲联盟的Acquis问题制定国家立法外,根据上述指令调整国内监管应有助于数字市场的发展,并为消费者和数字内容或服务的供应商增加法律确定性。在一些最新的作品中,作者对2019/770号指令与乌克兰数字内容和数字服务法草案(2022年1月31日第6576号)之间的个人数据监管进行了比较分析,该草案已被采纳为基础,并在此基础上将该指令的规定实施为国家法律。这项工作将集中研究这些规范性法律行为的另一个方面——修改数字内容和数字服务的问题。分析最近的研究和出版物。以下研究者研究了修改数字内容和数字服务的问题:C. J., Martínez, M. Farinha, L. M. Savanets, K. V. Efremova, G. M. Stakhira, K. G. Nekit研究的目的是为数字内容和数字服务的修改提供一个法律解释,其中有必要找出这一概念的定义、修改的法律依据、修改的类型以及与修改过程相关的权利、责任和义务。该条的另一个目的是将指令2019/770的某些规定与乌克兰2022年1月31日第6576号法律草案进行比较。文章的主体。在这项科学工作中,根据2019/770号《关于数字内容和数字服务供应合同的某些方面》指令的规定,并与2022年1月31日第6576号《关于数字内容和数字服务》法律草案的规定,对数字内容和(或)数字服务修改问题的法律规定进行了研究。本文的主要目的是澄清这一概念的法律解释,并分析引用的规范性法律行为中规范条款的合规性。在目标范围内确定了“修改”数字内容和服务的定义,明确了此类修改的法律依据、类型以及与修改过程相关的权利、义务和责任。除其他事项外,确定了“数字内容”和“数字服务”概念的法律解释,并分析了它们的大致列表。定义了提供数字内容和数字服务的方法。将修改数字内容和数字服务的概念视为供应商的一项权利和义务。对客观和主观遵守标准的规定进行了研究。明确违反上述合规要求的法律后果(保护消费者的手段)。考虑了赋予供应商修改数字内容权利的先决条件。提出了与用户协议(使用条款)有关的问题。它已经确定了允许修改数字内容或服务的正当理由应该理解的内容。为通知消费者引入某些修改而考虑的需求。特别是,在修改对消费者对数字内容或数字服务的访问或使用产生负面影响的情况下,定义了与使用持久信息载体通知消费者相关的细节。最后,对指令2019/770的规定与2022年1月31日第6576号法律草案的规定进行了比较,结果发现了一些重大缺陷,导致上述法律行为之间的不一致。结论及发展展望。 所进行的分析确定了“修改”的法律定义的缺失,然而,它建议在这一概念下考虑对数字内容、服务或访问它们的方法的任何修改,其特征是在保留本质的同时出现新的特征或属性。关于2019/770号指令与法律草案之间“数字内容”和“数字服务”概念之间的对应关系,可以得出结论,它们是一致的。这两种定义都具有足够的抽象性,以增加监管法律行为对数字市场快速发展的适应性。然而,该指令的文本可以让你理解大致的清单,特别是:计算机程序、应用程序、视频文件、音频文件、音乐文件、数字游戏、电子书或其他电子出版物等。研究发现,修改数字内容或服务可以被视为提供商的一项权利和法律义务。至于修改的先决条件(无论是权利还是义务),就其性质而言,它只能适用于在一定期间内向消费者提供或提供的数字内容或服务。作为一项义务,在提供商有义务确保数字内容或服务保持符合主观和客观要求的情况下,即必须进行必要的更改以防止不合规或消除已经存在的不合规行为。同时,消费者有权在不遵守规定的情况下使用所提供的保护手段。将修改作为供应商的一项权利必须以若干要求为基础,这些要求旨在确保对消费者公平的最低保障。这样做的主要前提是供应商和消费者之间签订合同(通常是“用户协议”,如“使用条款”)。在此类合同中,必须提供进行修改的正当理由(正当理由的清单并非详尽无遗,但必须符合合理性和相称性的一般原则)。此外,任何修改都必须在不增加消费者费用的情况下进行(事实证明,这不仅应被理解为增加付款的直接财务成本)。最后,必须清楚而全面地告知消费者有关修改的信息(如有必要,使用持久介质)。据发现,乌克兰法律草案尽管完全符合2019/770号指令,但仍存在许多重大不一致之处:缺乏“按合同规定更新”的主观要求,而法律草案在主观合规标准清单中包括了提供最新版本的要求,根据2019/770号指令,这是一个客观标准;供应商公开声明责任的不协调解决;在某些情况下,完全忽略了使用持久介质对修改进行适当通知的要求。
Modification of Digital Content and Digital Services Within the Understanding of the Directive 2019/770 and Draft Law № 6576
Problem setting. In May 2019, the European Parliament and the Council adopted the 2019/770 Directive «On Certain Aspects Concerning Contracts for the Supply of Digital Content and Digital Services», which came into force for EU Member States on January 1, 2022. The outlined directive makes many changes in the legal relationship between consumers and suppliers of digital content or services, which performs several positive functions at once: 1) elimination of legal gaps in the defined field; 2) improvement of consumer protection as a more vulnerable side of legal relations; 3) harmonization of disparate national regulation on a single approach; 4) promoting interstate economic relations through reducing market barriers. It is fair to point out that Ukraine also needs to eliminate the above problems. In addition to the need for national legislation on the Acquis of the European Union, the adaptation of domestic regulation to the above directive should contribute to the development of the digital market and to increase legal certainty for both consumers and for suppliers of digital content or services. In some of the latest works, the author conducted a comparative analysis of the regulation of personal data between Directive 2019/770 and the draft Law of Ukraine on Digital Content and Digital Services No. 6576 of 31.01.2022, which was already adopted as a basis and has on the basis The purpose of implementing the provisions of the said directive into national law. This work will focus on the study of another aspect of these normative legal acts-the question of modification of digital content and digital services. Analysis of recent researches and publications. The following researchers have studied the issue of modifying digital content and digital services: C. J., Martínez, M. Farinha, L. M. Savanets, K. V. Efremova, G. M. Stakhira, K. G. Nekit Purpose of the research is to provide a legal interpretation of the modification of digital content and digital services, in which it is necessary to find out the definition of this concept, the legal grounds for such modification, its types, as well as the rights, responsibilities and responsibilities related to the modification process. The additional purpose of the article is to compare certain provisions of the Directive 2019/770 with the draft Law of Ukraine No. 6576 of 31.01.2022. Article’s main body. In this scientific work, a study of the legal regulation of the issue of modification of digital content and (or) digital services was carried out in accordance with the provisions of Directive 2019/770 «On Certain Aspects Concerning Contracts for The Supply of Digital Content and Digital Services» and in comparison with the draft law «On Digital Content and Digital Services» No. 6576 dated January 31, 2022. The main goal of the article is to clarify the legal interpretation of this concept and analyze the compliance of the normative provisions in the cited normative legal acts. The definition of «modification» of digital content and services was determined within the scope of the goal, the legal grounds for such modification, its types, as well as the rights, duties and responsibilities associated with the modification process were clarified. Among other things, the legal interpretation of the concept of «digital content» and «digital services» was determined, and their approximate list was analyzed. Methods of providing digital content and digital services are defined. The concept of modification of digital content and digital services as a right and as a duty of the supplier is considered. The provisions regarding objective and subjective criteria of compliance have been studied. Clarified legal consequences in case of violation of the mentioned compliance requirements (means of consumer protection). The prerequisites that give the supplier the right to modify digital content are considered. Problematic issues related to user agreements (Terms of Use) were raised. It has been determined what should be understood by valid reasons allowing the modification of digital content or services. Considered requirements for informing the consumer about the introduction of certain modifications. In particular, the specifics related to informing the consumer using a durable information carrier are defined, in the event that the modification negatively affects the consumer’s access to digital content or digital service or their use. Finally, a comparison of the provisions of Directive 2019/770 and Draft Law No. 6576 dated 31.01.2022 was made, as a result of which a number of significant shortcomings were identified, which cause inconsistency between the mentioned legal acts. Conclusions and prospects for the development. The conducted analysis established the absence of a legal definition of «modification», however, it suggests considering under this concept any modification of digital content, services or a method of accessing them, which is characterized by the appearance of new features or properties while preserving the essence. Regarding the correspondence between the concepts of «digital content» and «digital service» between Directive 2019/770 and the Draft Law, it is possible to conclude that they are consistent. Both definitions are characterized by sufficient abstractness in order to increase the adaptability of regulatory legal acts to the rapid development of the digital market. However, the text of the directive allows you to understand the approximate list, in particular: computer programs, applications, video files, audio files, music files, digital games, e-books or other electronic publications, etc. As the study found, modification of digital content or service can be considered both a right and a legal obligation of the provider. As for the prerequisites for the modification (whether it is a right or an obligation), it can by its very nature only be applied to digital content or service provided or made available to the consumer during a certain period. As an obligation, modification is considered in the context that the provider is obliged to ensure the maintenance of compliance of the digital content or service with subjective and objective requirements, i.e., must make the necessary changes to prevent non-compliance or to eliminate already existing non-compliance. At the same time, the consumer has the right to use the provided means of protection in case of non-compliance. The use of modification as a supplier’s right must be based on several requirements designed to ensure minimum guarantees of fairness for the consumer. The main prerequisite for this is the conclusion of a contract between the supplier and the consumer (usually a “User Agreement” such as “Terms of Use”). In such a contract, valid reasons for making modifications must be provided (the list of valid reasons is not exhaustive, but must comply with the general principles of reasonableness and proportionality). In addition, any modification must be carried out without additional costs for the consumer (which, as it turned out, should be understood not only as direct financial costs as an increase in payment). Finally, the consumer must be clearly and comprehensibly informed about the modification (if necessary, using a durable medium). It was found that the Ukrainian Draft Law, despite the overwhelming compliance with Directive 2019/770, has a number of significant inconsistencies: the absence of a subjective requirement «to be updated as provided for in the contract », instead of which the Draft Law includes in the list of subjective compliance criteria the requirement to provide the latest version, which according to Directive 2019/770 is an objective criterion; uncoordinated settlement of the supplier’s responsibility for a public statement; completely ignoring the requirement for proper consumer notification of modifications using durable media in certain cases.