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Posted by righttobeforgottengdpr on August 30th, 2022

Scope of the digital content supply directive

The situation in which a consumer provides personal data in order to have the digital content or a digital service delivered falls within the scope of the Digital Content Supply Directive. The consumer can also claim the remedies offered by the Directive if the digital content or digital service is not supplied or is defective. Compared to the GDPR and the e-privacy directive, the digital content supply directive offers consumers complementary protection. Indeed, EU law on the protection of personal data provides protection only in so far as the processing of personal data is concerned.

The Digital Content Supply Directive does not apply where the trader only collects metadata, such as information about the consumer's device or his browsing history, nor in situations where the consumer, without having concluded a contract with the trader, is exclusively engaged in advertising. exposed to access digital content or a digital service.  In these situations, only EU law on the protection of personal data applies. This may apply, for example, to data collection by an online search engine.

The Digital Content Supply Directive also does not apply if personal data is only used by the trader to perform a contract or to comply with legal requirements, for example in the context of combating money laundering or terrorism. The use of personal data to perform an agreement or to comply with a legal obligation is based on Article 6(1)(b) and (c) of the GDPR.

The Digital Content Supply Directive also does not apply if personal data is processed solely by the trader to improve the security, compatibility or interoperability of software based on a free and open license ("open source software") and to provide the consumer with does not pay a price or digital representation of its value. 

There is little overlap between Union law on the protection of personal data and the Digital Content Supply Directive. The basic principle is that in the event of a conflict between the provisions of that directive and EU law on the protection of personal data, the latter shall prevail. 

4.2 Consent

In a contract whereby a trader supplies digital content or a digital service to the consumer in exchange for the provision of personal data, the consumer will always have to consent to the use of his data for one or more specific purposes. The consumer's contribution to the agreement then consists of permission to process his personal data. The conditions for consent have been elaborated in Article 7 of the GDPR. For example, the trader should be able to demonstrate that the consumer has given consent to the processing of his personal data and consent should be given through a clear, active act demonstrating that the consumer is free, specific, informed and unambiguous with the processing of his/her personal data. personal data agree. In addition, the consumer can withdraw consent at any time. The withdrawal of consent is also free of form and should be just as simple as providing it diritto all'oblio italia Legge.

If the consumer's contribution to the agreement only consists of the consent to process his personal data and he dissolves the agreement, he thereby indicates that he wishes to terminate the mutual contribution to the agreement. Inherent in this is the withdrawal of consent to the processing of his data that constituted his contribution to the contract. Separate withdrawal of consent is therefore not necessary in the event of the dissolution of the agreement by the consumer. 

Pursuant to the GDPR, a consumer can always withdraw his consent to the processing of his data, even in cases of termination of an agreement, without any formalities. In that situation, too, (the implementation of) the Digital Content Supply Directive and the GDPR must work effectively side by side. The rules on giving and withdrawing consent for the processing of personal data in the GDPR are aimed at protecting the person whose personal data it concerns. Because the consumer has the right to withdraw his consent under the GDPR, this means that the exercise of this right by the consumer does not lead to an attributable shortcoming if that permission concerns his contribution to the agreement. In that case, a trader cannot hold the consumer liable for non-compliance with the agreement. At the same time, withdrawing consent cannot automatically maintain the agreement for the supply of digital content or a digital service. In that case, the consumer cannot expect to retain access to the digital content or digital service. At the same time, the withdrawal of consent cannot automatically maintain the agreement for the supply of digital content or a digital service. In that case, the consumer cannot expect to retain access to the digital content or digital service. At the same time, the withdrawal of consent cannot automatically maintain the agreement for the supply of digital content or a digital service. In that case, the consumer cannot expect to retain access to the digital content or digital service.

The Digital Content Supply Directive leaves room for the Member States to regulate the consequences of the contract in general and the withdrawal of the consumer's consent. This bill therefore provides that if the consumer withdraws his consent, he is no longer legally bound by the agreement for the supply of digital content or a digital service because his contribution has lapsed. However, there is no obligation to cancel the performances already received insofar as the contract has already been fulfilled on the basis of the Dutch Civil Code transposing the Directive on the supply of digital content, because the GDPR prevails in this case.

If the consumer has withdrawn his consent, the trader must stop processing his data insofar as it concerns data for which consent has been given and the Digital Content Supply Directive no longer applies to the contract, unless there is also a price or a digital display of value has been paid. If the consumer no longer makes any contributions to the contract, he will no longer be entitled to invoke protection under the Digital Content Supply Directive, at least for the period after the withdrawal of consent. Should a consumer still pay for the service after the withdrawal, with money or a digital representation of value.