A new right for portability of digital contents for European consumers

Return to News — Thursday 13 February — 2020 by Aurelio López-Tarruella

The implimentation of the Digital Single Market Strategyhave required the adoption of a body of instruments that online platforms making business in Europe need to be aware of.

In particular, the adoption of the Geoblocking Regulation in 2018, and of the Regulation on promoting fairness and transparency for business users of online intermediation services and the Directive on digital contents in 2019 need to be highlighted. However, a last item in this legislative process have come recently: last December, Directive 2019/2161 was published in the Official Journal. Its purpose is to amend several consumer protection directives.

While this latter directive might have passed unnoticed, it introduces a quite relevant amendment in Directive 2011/83: the right of portability of digital content. For this reason, art. 13 now includes two new paragraphs:

“6. Except in the situations referred to in point (a), (b) or (c) of paragraph 5, the trader shall, at the request of the consumer, make available to the consumer any content, other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader.
7.The consumer shall be entitled to retrieve that digital content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format”.

Thanks to these provisions of a mandatory carácter, European consumers will enjoy a unwaivable right to request the portability of his/her contents (images, documents, audiovisual files…) from the platform that host those contents (e. g. Dropbox, Google, Facebook….) to a different service provider. This measure will not only put an end to lock-in situations that presently many European consumers suffer, but it will also boost competition among platforms. This is so because in order to keep their clients, they will need to constantly innovate and improve their services.

The adoption of this right complements the already existing right of portability of personal data established in Art. 20 of the General Data Protection Regulation. It constitutes a great improvement for consumers’ rights. However, similar to other legal instruments adopted within the framework of the DSM Strategy, it will require the adoption of measures on behalf of the e-commerce platform to adapt their business models to the new regulatory environment. In this case, they have time until 28 May 2020, since the new directive will not be applicable until that date.