On 6 December 2012, the European Commission (the "Commission") published the results of an EU-wide screening of websites selling games, books, videos and music which can be downloaded to a computer or mobile device (the "Digital Content Sweep"). The goal of the Digital Content Sweep, which took place in June 2012, was to identify breaches of consumer law and ensure its enforcement.
The Digital Content Sweep was coordinated by the Commission and run simultaneously by national enforcement authorities from all EU Member States (except Ireland) as well as Norway and Iceland. Of the 333 websites checked, 254 sites (i.e., 76%) were flagged for further investigation as the authorities had doubts about the websites' conformity with EU consumer law. The Belgian authorities checked a total of 11 websites which were all flagged for further investigation.
The most common problems found in the Digital Content Sweep were (i) unfair terms; (ii) lack of information on the consumer's right of withdrawal; and (iii) missing information on the trader's identity and address.
Firstly, a total of 230 websites (i.e., 69% of websites checked) contain unfair terms. In most cases, the trader excludes its liability in case the data transfer is incomplete or in case the product is not compatible with the consumer's hardware or software. Other commonly used types of unfair terms exclude or hinder the consumer's right to take legal action or seek any other legal remedy (e.g. a jurisdiction clause in favour of a court in the trader's country) or deprive consumers of the right to receive a new product or claim reimbursement when the downloaded product fails to work or is of unsatisfactory quality.
Secondly, 141 websites (i.e., 42% of websites checked) fail to inform consumers prior to purchase of the fact that the consumer loses his/her right of withdrawal from the contract when downloading has begun with the consumer's agreement. Indeed, due to the nature of downloads, a downloaded product cannot be returned (download is equal to consumption).
Finally, 121 websites (36%) fail to display the identity and the geographical and e-mail addresses of the trader.
In addition to the Digital Content Sweep, the Commission contracted a study which revealed that (i) many websites fail to inform consumers whether or not they can use the downloaded digital content in a country other than their place of residence; and (ii) websites very often advertise games as "free" even though they involve some payment at a later stage for add-ons or in-game purchases.
The national enforcement authorities have started to contact companies and ask them to provide clarifications or amend their websites. Failure to do so can result in legal action leading to fines or closing down of websites. The national authorities will report back to the Commission by autumn 2013, after which the Commission will report on the results.
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