Defective Digital Products and Services in Compliance with the 'Digital Content Directive': Assessing Non-GDPR Compliant Digital Products as 'Defects'

Abstract

This research paper delves into the legal aspects of the Directive (EU) 2019/770, commonly known as the "Digital Content Directive," and its impact on harmonizing the European internal market. The objective of this directive was to establish a legal framework that effectively addresses the legal challenges associated with digital products and services, particularly due to their international sales and the resulting legal uncertainties. However, as the directive is categorized as a "directive" rather than a binding regulation, concerns regarding the extent of harmonization persist.

A pivotal question arising from this directive revolves around the determination of defect products, specifically, the criteria for categorizing a product as "defective." In cases where the digital product fails to deliver the advertised service, the answer is relatively clear-cut. However, identifying defects or defective products becomes considerably more complex when the product functions properly but fails to comply with specific national or European laws.

This paper critically examines whether a digital service or product can be deemed defective under the Digital Content Directive and German national law when it violates the European General Data Protection Regulation (GDPR). German private law serves as an illustrative example in this analysis.

By undertaking a comparative analysis of the Digital Content Directive, German national law, and the GDPR, this research aims to shed light on the intricate relationship between defect determination and GDPR non-compliance. The study contributes to the ongoing discourse surrounding the harmonization of laws pertaining to digital products and services within the European internal market, particularly in relation to privacy and data protection considerations.

Keywords: Digital services, digital products, data protection, GDPR, defective products