Are you in the digital content or digital services (software) field?
Here are some key rights and obligations you should know about.
Beyond the general obligations and procedures for offering products and services to consumers, Emergency Ordinance no. 141/2021 introduces some specific rules for digital goods and services. Here’s a simplified breakdown.
Why should I care if I don’t work directly with individual consumers?
Even though this regulation concerns additional rights for consumers (only for individuals), according to Article 19(2) of OUG no. 141/2021, the consumer has the right to seek compensation for non-compliance from any party in the commercial supply chain, not just the direct seller. So, any supplier in the chain can be held liable for non-compliance.
e.g. If you develop software for a personal development course platform, you’re just as responsible for any functionality issues as the course author.
What’s new? Not a lot, but the details matter.
The merchant (and by extension, any party in the transaction chain) is responsible for non-compliance found within five years from the date of delivery of the digital content or service. This applies if you sell or resell software or create a website.
If the digital content is delivered continuously (for example, via a subscription), the merchant is responsible for compliance for the entire subscription period.
The obligation to deliver and prove delivery of digital content
The merchant must prove that the digital content or service was delivered as agreed with the client. This can include proof of access, download, installation on physical devices (like laptops, phones, tablets), or other mutually agreed methods.
For one-time sales, during the first year after delivery, the client does not have to prove any non-compliance – this burden falls on the merchant, who must show the digital content or service was compliant at delivery.
For continuous supply, the merchant is permanently responsible for proving compliance, meaning the client doesn’t need to prove that the content or service isn’t working properly.
Applies even to FREE digital content
These compliance rules also apply when the merchant offers digital content or a digital service for free, but the consumer provides personal data in exchange. However, if that data is used solely to deliver the service or to meet legal requirements, these rules do not apply.
Example: A free e-book reading app might require an email address only for login and account-related notifications. If that data isn’t used for marketing, the exception applies.
Why pay attention? Sanctions
In addition to standard fines – ranging from 5,000 to 50,000 lei depending on the seriousness of the violation (for example, modifying the digital content/service without meeting the legal requirements can result in a fine of 10,000–50,000 lei) – authorities can also order the digital content to be brought into compliance or the refund of the product’s value, as applicable. This complementary measure is enforceable, meaning once the fix is ordered, it can be enforced through debt collection.
Unlike other fines, these cannot be reduced to half the legal minimum if paid within 15 days.
If this article helped you understand the legislative changes for digital products and services, follow us on social media for future articles on protecting and preventing non-compliance in your offerings.
