On 1 January 2023, new legislation implementing the Digital Directive will come into force, which will significantly affect the rules for the supply of digital content or services in Poland. This article identifies in general terms the most important changes to the rights and obligations of suppliers of digital content/services and bodies to whom such content or services will be supplied.

On 9 November 2022, the President of Poland signed a law[1] that will implement several EU acts into the Polish legal system, including Directive 2019/770[2] (commonly known also as the ‘Digital Directive’). Effective from 1 January 2023, the changes will significantly affect the rules for the supply of digital content or services in Poland, including the relationship between the consumer and the suppliers of such content/services. The following are the key issues that should be taken into account by businesses providing electronic services.

New definitions of ‘digital content’ and ‘digital service’

With the implementation of the Digital Directive, the terms ‘digital content’ and ‘digital service’ have been defined in the Polish Consumer Rights Act.

‘Digital content’ should be understood to mean data which are produced and supplied in digital form (e.g., computer programs, applications, video files, audio files, music files, digital games, e-books, newsletters).

A ‘digital service’, in turn, should be understood to mean a service that allows the consumer to:

  • create, process, store or access data in digital form;
  • share data in digital form that have been uploaded or created by the consumer or other users of that service;
  • any other interaction with data in digital form.

Digital services include, e.g., streaming platforms, services enabling video and audio sharing, other electronic file/content hosting, and cloud computing services.

New obligations of digital content and service suppliers

Due to the implementation of the Digital Directive, suppliers of digital content or services will have, among others, the following obligations:

  • the obligation to supply the digital content or service immediately after the conclusion of the contract, in the most up-to-date version (unless otherwise agreed);
  • the obligation to supply digital content or service in accordance with the contract (the content or service supplied must, among others, be suitable for the purposes typical of the specific service/content, taking into account applicable law, technical standards, good practice or other contractual purposes);
  • the obligation to provide notice of updates;
  • the obligation to provide notice of a change to the digital content or service (whereby the mere possibility of making a change to the digital content/service that is not necessary for compliance with the contract may only be made if: this has been expressly stipulated, the nature of the content/service provided allows it, and there are no additional costs involved);
  • obligations arising from the exercise of the right of withdrawal from the contract by the recipient of the content/services (e.g., the obligation to refund payments made, to make available certain content).

New rights and obligations of an entity to which digital content or services are supplied

New rights for the entity to which digital content or services are supplied will also be introduced. Under the new rules, a consumer or sole trader[3] will have the following rights in certain situations:

  • the right to withdraw from the contract if the supplier has failed to supply the digital content or service within the contractual deadline;
  • the right to have the digital content or service brought into conformity;
  • the right to request a price reduction or to withdraw from the contract if the supplier failed to successfully bring the digital content/service into conformity or if the bringing of the digital content or service into conformity proves ineffective or impossible, or requires incurring excessive costs.

The new legislation also imposes new obligations on the consumer, including:

  • the obligation to install updates received from the supplier within a reasonable time;
  • the obligation to cooperate with the supplier of digital content/service if non-conformity of the content/service is identified, in order to clarify whether such non-conformity has not arisen due to the consumer’s digital environment.

The above rights and obligations will apply to contracts for the supply of digital content or services where the contract is for valuable consideration or where, while the contract is not for valuable consideration, personal data provided to the trader (supplier of the digital content/service) are processed for purposes other than the performance of the contract concluded or the fulfilment of a statutory obligation of the supplier.

Furthermore, the new legislation provides for certain exceptions for certain categories of content or services where the abovementioned rights and obligations will not apply.[4]

The upcoming changes will have significant implications for traders conducting their business online. It will be necessary to analyse the nature and rules of the electronic services supplier so far and – if necessary – to make the necessary changes, in particular changes to the documents setting out the rules on which digital content or services will be supplied.

[1] Act of 4 November amending the Polish Consumer Rights Act, the Act – Civil Code and the Act – International Private Law.

[2] Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services.

[3] A natural person who enters into a contract directly related to their business activity when it is clear from the content of that contract that it is not of a professional nature for that person.

[4] See new Article 43i of the Act of 30 May 2014 on consumer rights.