§5.7 Right of withdrawal from contracts for online digital content

The right of withdrawal from contracts for digital services is discussed in previous section 5.6 dealing with service contracts in general. The specific restrictions on the right of withdrawal from contracts for online digital content are set out in point (m) of the first paragraph of Article 16. Directive (EU) 2019/2161 amended this provision by adding a third condition that trader must fulfil for consumers to lose the right of withdrawal from the contract. This is in line with the conditions in Article 14(4)(b) that deals with the consequences of not respecting the information/formal requirements. Article 16 Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises contracts as regards the following: […] (m) contracts for the supply of digital content which is not supplied on a tangible medium if the performance has begun and, if the contract places the consumer under an obligation to pay, where: (i) the consumer has provided prior express consent to begin the performance during the right of withdrawal period; (ii) the consumer has provided acknowledgement that he thereby loses his right of withdrawal; and (iii) the trader has provided confirmation in accordance with Article 7(2) or Article 8(7). Point (m) of the first paragraph of Article 16 pursues an objective similar to that of the rule in point (i) of the first paragraph of Article 16 exempting sealed tangible data carriers (CDs, DVDs etc.) from the right of withdrawal if the consumer unseals them. This means that in both these cases, unlike that of the withdrawal from the provision of services (see section 5.6), the consumer has no right to ‘test’ the digital content during the right of withdrawal period. Accordingly, the consumer loses the right of withdrawal as soon as the performance of the contract has begun with his or her consent and acknowledgment of the loss of this right if the trader has provided the confirmation of the contract. As provided in Article 7(2) concerning off-premises contracts and Article 8(7) concerning distance contracts, that confirmation must also include confirmation of the consumer’s prior express consent and acknowledgement (see also section 4.4 on the confirmation of the contract). The performance starts with the downloading or streaming of a video or audio file. If a trader provides a web link to launch streaming or downloading, the consumer would only lose the right of withdrawal after activating that link. The consumer’s express consent and acknowledgement can be acquired before, during, or after the contract is concluded, as long as it happens before performance starts. Article 7(2) and Article 8(7) of the CRD expressly require the confirmation of contract to include the confirmation of the consumer’s prior express consent and acknowledgment in accordance with point (m) of the first paragraph of Article 16. Therefore, where the consumer provides consent for immediate performance and acknowledgment after the trader has already sent confirmation of the contract, the trader must provide the consumer with a separate additional confirmation of that consent and acknowledgement before the performance starts. ‘Express’ consent and acknowledgement for the purposes of point (m) of the first paragraph of Article 16 should be interpreted by analogy to the rules on express consent provided in Article 22 on additional payments for additional services. This means the consumer has to take positive action, such as ticking a box on the trader’s website. Expression of consent and acknowledgment by means of a pre-ticked box or accepting the general terms and conditions would not satisfy the requirements of point (m) of the first paragraph of Article 16. The consumer’s express consent and acknowledgement can be given in one statement, also conveying information about the exception from the right of withdrawal as required under Article 6(1)(k), for example: — […] I hereby consent to immediate performance of the contract and acknowledge that I will lose my right of withdrawal from the contract once the download or streaming of the digital content has begun. The trader has to comply with the information obligations about the right of withdrawal under Article 6(1)(h). Only in the case of contracts for online digital content that are performed immediately where the consumer provides consent and acknowledgement triggering the start of the performance of the contract, the trader does not need to provide the information under Article 6(1)(h), including the model withdrawal form set out in Annex I(B).

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