European consumer organisation BEUC has made no secret of its critical stance toward the European Commission's proposal for an optional instrument that would offer a set of contract terms that parties may, inter alia, choose to apply to their contracts for the supply of digital content (such as films, e-books or music). In particular, BEUC is sceptical of the proposed Common European Sales Law's optional nature, since 'a business selling digital content online will be able to decide between modern European rules or national legislation, which is - as acknowledged by the European Commission - often unclear about the rights to which consumers are entitled in contracts for the supply of digital content. What consumers need is solid legislation applicable to all contracts and not dependent on an opt-in or opt-out basis.'
Yet, what are the alternatives? In a recently published position paper, BEUC outlines the following suggestions for updating the acquis communautaire governing digital content contracts for consumers:
'- A legislative proposal modernising the EU rules on legal guarantees in order to cover digital content products. This could be done via a new Directive on digital content products or in the frame of an eventual revision of the 1999 Sales of Goods Directive. The rules included in chapters 10 and 11 of the CESL could serve as a basis with the appropriate adaptations as indicated in point 5 of this paper.
- Standardisation of key information provided to consumers and the format in which it shall be presented to make this information comprehensible, transparent and easy to access and to read. This initiative should equally take into account the Commission’s own research on consumers’ behaviour towards information load and the way consumption decisions and made.
- Initiatives to address the issues related to lack of the transparency and unfairness of certain contract terms in digital content contracts. They could include guidance on transparency requirements and unfair contract terms, which would help clarify the application of the UCT legislation to digital content contracts and include examples of terms which may be considered unfair under the 1993 Unfair Contract Terms Directive.
- Support better enforcement of EU rules against unfair commercial practices in the field of digital content products through promoting co-ordinated enforcement actions by national consumer organisations and facilitating the co-operation for national enforcement authorities.
- Clarify under which conditions a contract for the supply of digital content can be concluded by a minor.'