Current Rights and Remedies Available to Consumers - Coursework Example

Digital Content DIGITAL CONTENT Introduction The Consumer Rights Bill has been introduced to the UK parliament and it seeks to establish a framework through which key consumer rights can be consolidated, especially in relation to contracts over services and goods, as well as laws relating to unfair consumer contract terms (Stokes, 2013: p41). In this case, the Bill sets out to introduce specific new remedies and rights with regards to digital content quality. Moreover, the Bill also seeks to introduce easier ways through which the consumer may challenge behaviour considered anti-competitive, while also consolidating the power of enforcers to investigate instances of consumer law breaches. The definition of digital content is data that is created in digital form and supplied in the same form, which means that the debate regarding the classification of digital content as goods or not would be rendered irrelevant. The rights proposed by the Bill will be applicable to all digital content that is paid for, content that is paid for with a facility like gift vouchers, virtual currency, and tokens, and digital content supplied as part of paid-for content (Stokes, 2013: p43). This paper will seek to explain the rights and remedies of a consumer buying games from a computer games company if the games supplied are defective or are not to the expectations of the consumer, as well as analysing the changes that the proposed Bill will portend on these rights and remedies. Current Rights and Remedies Available to Consumers According to Portela and Cruz-Cunha (2010: p71), consumer connection in relation to digital content remains highly uncertain with legal disputes regarding the nature of digital content as a service, goods, or neither. Indeed, examining fundamental protections for the consumer of digital content, it is not clear what legal rights the buyer of digital content such as the computer game has, if any at all, if the computer game is defective or does not live up to the expectations of the purchaser. Therefore, as of the present time, it is not clear what quality rights and remedies the digital content consumer has available, which continues to make it difficult for the buyer to enforce his/her rights. The market for digital content, including physical and download copies of computer games, is large and continues to grow, which has been noted as being detrimental to the consumer due to the provision of overly complex or total absence of information. The consumer is also at a disadvantage due to lack of recourse where it is difficult to access digital content, as well as where this digital content has quality issues (Portela & Cruz-Cunha, 2010: p72). Currently, consumers buying computer games online and as physical copies in the UK have little protection. However, consumers of digital content may at present enforce their rights under the Consumer protection from Unfair Trading Regulations of 2008, which identify aggressive and misleading commercial practices towards consumers by business and also criminalizes them (Atwood, 2010: p7). Where a consumer of the computer game finds that the quality is not to expectations or the game is defective, he/she does not have a direct right of action and their claims can only be enforced by Trading Standards or the Competition Markets Authority. An amendment to the Consumer Protection Regulations in 2014 has made it possible for the consumer to seek redress from civil court if they perceive misleading actions by the computer game company. Still, the consumer would not have a right to bring claims for misleading omission by the company. These new regulations are as applicable to digital content sales such as computer games as they are to the supply of services and sale of goods (Atwood, 2010: p7). A consumer would succeed in a claim if they showed that their decision to buy the computer game and make payment was due to relevant misleading action, as well as that the computer game failed to meet the consumer’s expectations. Assuming that a consumer brought such claims against the computer company, there are several remedies currently in place for the buyer. The buyer would have a right to unwind, which is assuming the computer game has not been consumed fully, as well as where the consumer already rejects the game within ninety days of purchasing it (Lehdonvirta & Virtanen, 2010: p17). In this case, the consumer would be entitled to break his/her contract and be given a refund, as long as the digital content was provided through physical means such as through a compact disc was availed by the company for collection. The consumer also has a right to a discount, which is available in relation to future or past payments that are still due under the contract with the company, Consumers are entitled by the regulations to a 100, 75, 50, and 25% discount on the computer game’s payments. The seriousness of the incident the consumer complains about will be the determining factor of the discount level, which will be assessed through reference to the company’s behaviour, the time elapsed since the computer game was purchased, and impact of the company’s behaviour on the purchaser (Lehdonvirta & Virtanen, 2010: p17). The consumer also has an entitlement to seek damages for two forms of loss, which are distress, alarm, or physical discomfort or inconvenience due to the incident complained of and/or consequential financial loss (Cope & Freeman, 2011: p61). The computer game company will possess due diligence defence with regards to the consumer’s right to claim damages. These rights became applicable on the 1st of November, 2010 and, as a result, apply to consumer and business contracts that were entered into on this date or before. Even these regulations, however, have been termed as out of date as their provisions on digital content are vague and are as of yet un-interpreted. It is not that surprising that present legislation on consumer protection has such limited provisions on digital content, especially since most recent legislation is almost thirty years old (Cope & Freeman, 2011: p62). This has meant that the purchase of computer games, for example, is beset by a degree of uncertainty regarding compensation by the company where the games are defective. Current Proposals as Set out in the Consumer Rights Bill (2014-15) Rights The proposed quality rights with regards to digital content are generally similar to quality rights for tangible goods proposed in the Consumer Rights Bill. Under the new proposals, the buyer of the company’s computer games will have a right to satisfactory quality, which is the standard that a reasonable person would consider after accounting for the price, description, and other factors like public statements made by the company about particular characteristics possessed by the digital content (Einhorn, 2014: p51). The new Bill’s requirement that digital content should be free of any minor defects will be assessed against expectations deemed reasonable. As such, the standard is flexible and the burden will mostly be on more expensive and complex software, rather than simpler content like computer games. The new proposals also provide that the digital content should be fit for purpose, which is made known by the consumer to the computer game company by implication or implicitly. As such, where the consumer notifies the seller that they are purchasing the digital content for a specific purpose, an implied term would exist that the content is expected to be reasonably fit for the consumer’s stated purpose (Einhorn, 2014: p53). Apart from the above requirement that the computer game is as described by the trader, another right granted to the consumer is that the digital content should match content provided during a trial version (London Legal Studies & Services, 2014: p36). The digital content will be expected to match the given description, such as in relation to main functionality, characteristics, and compatibility. In the Consumer Rights Bill, if a consumer uses a trial version of the computer game, it is not adequate that that the computer game is better than or matches the trial version where the computer game fails to also match descriptions given to the consumer by the company of the digital content. Another right is that any modifications to the digital content should also adhere to quality requirements. The computer game company could specify that they will make modifications to the digital content going forward, but all the modifications will still be expected to meet fitness for purpose requirements, quality requirements, and also match their description. Finally, the consumer will also have the right to expect that the computer game will not damage other digital devices and content and they will have remedies if such damage occurs as a result of the company not using reasonable skill and care (London Legal Studies & Services, 2014: p37). Remedies As with the rights given to the consumer of digital content by the Consumer Rights Bill, the remedies proposed by the Bill are generally similar to those provided for goods, although there are differences that are reflective of digital content’s intangible nature. The Bill, effectively, has proposed two an overlap of regimes between tangible and intangible digital content that fails to conform to the contract (Helberger, 2013: p60). For intangible content, such as downloads of the computer game, the consumer may require that content failing to conform to the terms of the contract is replaced or repaired, or even that it is replaced. In addition, where the trader providing the digital content to the does not possess the right to do so, the consumer may seek remedy through a refund. If the consumer buys the computer game as a physical disc, this would be considered as tangible digital content. The consumer will have access to the same remedies as would be sought for faulty downloads of the computer game, or intangible digital content. However, he/she will also have the ability to pursue remedies related to faulty goods, such as the final or short term right to reject as the contract will be considered “mixed”, meaning that the goods will not be in conformance to the contract where there is no conformance in the digital content (Helberger, 2013: p60). The consumer will seek remedy under the Bill through replacement or repair of the content where the digital content fails to meet the standard of quality expected by the consumer. Another remedy would be a reduction in price, specifically where it is not possible to use replacement or repair, as well as where replacement or repair would be impossible without inconveniencing the consumer or if it is not done in a reasonable frame of time (Gruner, 2013: p39). In this case, the consumer will be entitled to a reduction in price, while also keeping the digital content and the refund could be up to the full payment made by the consumer. The consumer may also seek repair of damage as a remedy, specifically where their device or other content is damaged by the computer game. In such a case, the computer company will be required to provide financial compensation or repair the damage caused. However, it will be up to the consumer to prove that there was failure on the computer company’s part to use reasonable skill and care to prevent potential harm (Gruner, 2013: p41). The final remedy proposed under the Consumer Rights Bill is the refund, which applies if the trader is not allowed to sell the product. Evaluation of the Current Proposals The computer company will be required to ensure that their conditions and terms, as well as all relevant contracts including end-user licenses, are reflective of the remedies and rights that will be enacted when the Consumer Rights Bill becomes an Act (MacQueen, 2013: p536). These rights and their subsequent remedies cannot be overlooked, meaning that download processes and contracts must be reviewed to ensure compliance. While the Bill is unlikely to come into force until 2015, the computer company and other organizations creating and/or supplying digital content must acquaint themselves with the likely changes. Currently, consumer law in the UK is spread out across twelve distinct sets of regulations and Acts, including the Consumer protection from Unfair Trading regulations and Distance Selling Regulations (MacQueen, 2013: p537). The EU’s Consumer Rights Directive, in addition, is expected to change consumer rights after its implementation as UK national law. The proposals in the Bill do not alter significantly or radically existing consumer protection laws. However, the computer company should now undertake a review of its processes, specifically regarding distance sales and online sales, so as to determine changes that may be required in the coming year (McKendrick, 2014: p38). The Consumer Rights Bill, rather than effecting broad changes in current laws, will update, improve, and bring together different consumer laws, setting out a modern, simple framework of consumer rights. Unlike current treatment of digital content as either services or goods on the basis of the media used for their provision, the Draft Bill will apply statutory guarantees of goods to digital content (McKendrick, 2014: p38). As a result, they will be taken as goods regardless of whether they are downloads or in physical form such as on optical discs. However, trial versions, unlike goods, will not be relevant in relation to guarantees on compliance with the trader’s description (McKendrick, 2014: p40). It will still be necessary to provide specific pre-contractual information as is done with goods, including information touching on the digital content’s compatibility with other content and devices. However, the Bill will not allow rejection of defective digital content by the consumer, although it proposes specific statutory remedies like a partial or full refund where repair or replacement is ineffective. The Bill will also introduce consumer rights that enable consumers to be compensated if their devices or other content are damaged, in this case as a result of the provided faulty digital content (McKendrick, 2014: p41). Thus, although the Consumer Rights Bill seeks to update, improve, and bring together existing laws, it does not drastically alter already existing laws. Reflective Journal The computer games company should welcome the Draft Consumer Rights Bill, in particular the Bill’s attempt to provide coverage for digital content, which current laws and regulations in the UK fail to do. While welcoming the clarification and consolidation of various consumer laws in the UK and, specifically, its application to consumption of digital content, however, the Bill will require supplementation using active rising of awareness and active enforcement to be effective. In identifying the changes the Bill will bring to current consumer law touching on digital content, it was noted that the Bill still lacks a framework to guide sharing of information with the consumer. Brining in digital content companies to the consultation process may help in achieving such a framework. Moreover, the discussion did not find sufficient clarification in the Bill that indicates nothing will supersede already existing sectorial regulations in the digital content area. It would seem that an amendment to the Bill would be in order to clarify the powers of the existing regulatory bodies in ensuring consumer protection. Throughout the writing of this paper, it became increasingly clear that, in addition to this Bill being passed, the UK government and parliament should also make allowances for updating of digital content’s regulatory framework as digital content is in its exponential growth stage. As such, it is my opinion that the Bill should be amended to reflect changes in consumer behaviour and technology. Overall, information on the Bill is readily available, which should help companies to prepare for future changes. Word Count: 2578 Words References Atwood, J. W. (2010). Requirements for enforcing digital rights management in multicast content distribution. Telecommunication Systems, 45, 1, 3-20. Cope, B., & Freeman, R. (2011). Digital rights management and content development. Altona, Vic: Common Ground Publishing. Einhorn, M. A. (2014). 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Information communication technology law, protection and access rights: Global approaches and issues. Hershey, PA: Information Science Reference. Stokes, S. (2013). Digital copyright: Law and practice. Oxford: Hart Pub. Read More