§1.5 Distinction between digital services and online digital content

Directive (EU) 2019/2161 clarified the definition of ‘services contract’ in the CRD as including also contracts for ‘digital services’ (see the definition in the previous section). In addition, Directive (EU) 2019/2161 introduced, in Article 2(16), a definition of ‘digital service’, which refers to its definition in point (2) of Article 2 of the Digital Content Directive (EU) 2019/770 of the European Parliament and of the Council (21) (‘DCD’). Article 2 of Digital Content Directive provides: Article 2 (1) ‘digital content’ means data which are produced and supplied in digital form; (2) ‘digital service’ means: (a) a service that allows the consumer to create, process, store or access data in digital form; or (b) a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service; Recital 19 of the DCD explains that ‘in order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content or digital service, this Directive should cover, inter alia, computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, and also digital services […] including software-as-a-service , such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media.’ It should be noted that while the second set of examples are clearly attributed to the category of digital services, the classification of the first set of examples as digital content or services depends on the mode of transmission or access as well as other specifics of the business model. Recital 30 of Directive (EU) 2019/2161 provides further guidance on distinguishing the contracts for online digital content from contracts for digital services. In particular, ‘ [e]xamples of digital services are video and audio sharing services and other file hosting, word processing or games offered in the cloud, cloud storage, webmail, social media and cloud applications’. In contrast, ‘[m]any contracts for the supply of [online] digital content […] are characterised by a single act of supply to the consumer of a specific piece or pieces of digital content, such as specific music or video files.’ Accordingly, digital services are, for example: — subscriptions to internet-based storage of pictures created by the consumer, to social networks or to internet voice/video telephony; — subscriptions to online weather or traffic services; — subscriptions to online newspapers/newsletters (see also the exception from the right of withdrawal under point (j) of the first paragraph of Article 16, which applies to the supply of a newspaper but not to newspaper subscriptions). Recital 30 of Directive (EU) 2019/2161 acknowledges that it may be nevertheless difficult to distinguish between certain types of online digital content and digital services. Therefore, ‘[w]here there is doubt as to whether the contract is a service contract or a contract for the supply of digital content which is not supplied on a tangible medium, the rules on right of withdrawal for services should apply .’ The distinction between contracts for online digital content and contracts for digital services is important because of the different right of withdrawal regimes. The rules on the right of withdrawal for service contracts effectively allow the consumer to test the service and decide, during the 14-day period from the conclusion of the contract, whether to keep it or not. In contrast, under point (m) of the first paragraph of Article 16 there is no right of withdrawal in the case of supply of online digital content, subject to several conditions. In accordance with the amendments introduced by Directive (EU) 2019/2161, these conditions are that the performance has begun with the consumer’s prior express consent and acknowledgment that the consumer thereby loses the right of withdrawal and that the trader has provided confirmation of the contract concluded (see also section 5.7). The Court clarified in C-641/19 PE Digital that the exception to the right of withdrawal under Article 16(m) CRD applicable to contracts for online digital content should be interpreted strictly (22). The case concerned withdrawal from a premium subscription agreement for a dating website, but only after the consumer had taken a personality test that provided a selection of partner recommendations based on a proprietary algorithm. The Court stated that Article 16(m), read in conjunction with Article 2(11) of the CRD, must be interpreted as meaning that the generation of such a personality report does not constitute the supply of ‘digital content’. The Court also noted more generally that, in the light of Recital 19 of the Directive, a web-based service that allows the consumer to create, process, store or access data in digital form and allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service cannot, as such, be regarded as the supply of ‘digital content’ within the meaning of Article 16(m) (23). For example, the provision of video games may involve both contracts for online digital content and contracts for digital services. Downloadable games would normally qualify as online digital content when their use does not depend on continuous involvement of the game supplier. In contrast, online games provided in a cloud environment would qualify as digital services. In-game micro-transactions (in-app purchases) in such games that enhance the playing experience of the respective user, such as virtual items, would normally qualify as contracts for online digital content. Also in-app purchases of content that could be used outside the game (e.g. a recording of the gaming session that can be downloaded or shared on a video-sharing platform) would normally constitute a contract for online digital content. In contrast, the purchase of premium content that expands the online gaming environment would represent a new digital service that complements the original one.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07