{"id":3987,"date":"2023-01-25T10:13:17","date_gmt":"2023-01-25T10:13:17","guid":{"rendered":"https:\/\/sawaryn.com\/?p=3987"},"modified":"2026-10-23T07:28:20","modified_gmt":"2026-10-23T07:28:20","slug":"polish-digital-content-services-rules","status":"publish","type":"post","link":"https:\/\/sawaryn.com\/en\/publikacje\/polish-digital-content-services-rules\/","title":{"rendered":"What Changes Does the Digital Directive Introduce?"},"content":{"rendered":"<p><a href=\"https:\/\/sawaryn.com\/en\/publikacje\/polish-digital-content-services-rules\/\"><strong>The Digital Directive<\/strong><\/a> distinguished digital content from digital services. This distinction affects the rules on withdrawing from a contract, assessing conformity with the contract, information duties and complaint procedures. If you sell e-books or online courses, provide cloud services or offer other digital products, check whether your terms and the functionality of your store meet the new requirements.<\/p>\n<h2>Digital content and digital services: what is the difference?<\/h2>\n<p>The Digital Directive introduced two separate definitions:<\/p>\n<ul>\n<li><strong>Digital content<\/strong> is content that can be supplied on an intangible medium, such as e-books, online courses and audio files.<\/li>\n<li><strong>Digital service<\/strong> is a service provided continuously or repeatedly, such as cloud data storage, email or social media.<\/li>\n<\/ul>\n<p>A third category is <strong>goods with digital elements<\/strong>: a physical product whose proper functioning depends on digital content or a digital service. One example is a smartwatch that does not work properly without a mobile app.<\/p>\n<h2>Why does this distinction matter to your business?<\/h2>\n<p>The distinction between digital content and digital services directly affects:<\/p>\n<ol>\n<li><strong>A consumer\u2019s right to withdraw from a contract<\/strong>: different rules apply to digital content and digital services.<\/li>\n<li><strong>Criteria for assessing conformity with the contract<\/strong>: the new rules apply to both categories.<\/li>\n<li><strong>Rules for reducing the price and withdrawing from a contract<\/strong>: see the <a href=\"https:\/\/sawaryn.com\/en\/?p=3984\"><strong>changed complaint procedure<\/strong><\/a>.<\/li>\n<li><strong>Information duties<\/strong>: new requirements concern consents and confirmations.<\/li>\n<\/ol>\n<h2>Withdrawal from a contract: different rules for digital content and services<\/h2>\n<h3>Digital services<\/h3>\n<p>A consumer may withdraw from a contract for the supply of a digital service within <strong>14 days<\/strong> of entering into it.<\/p>\n<h3>Digital content supplied on an intangible medium<\/h3>\n<p>A consumer <strong>cannot<\/strong> withdraw from the contract if you meet all of the following conditions together:<\/p>\n<ol>\n<li>You obtain the consumer\u2019s <strong>prior consent<\/strong> to begin supplying the digital content before the withdrawal period expires.<\/li>\n<li>The consumer <strong>acknowledges<\/strong> that they will lose the right to withdraw once the digital content has been supplied. Merely providing the information is not enough. You need confirmation that the consumer has acknowledged it.<\/li>\n<li>You provide the consumer with <strong>confirmation that you received their consent<\/strong> on a durable medium, for example by email.<\/li>\n<\/ol>\n<p>If you fail to meet any of these requirements, the consumer retains the right to withdraw.<\/p>\n<h2>Conformity of digital content or services with the contract: assessment criteria<\/h2>\n<p>Digital content or a digital service conforms to the contract when it meets the criteria agreed in the contract. Check whether your offer and terms cover the following:<\/p>\n<ul>\n<li>The product\u2019s description, type, quality, completeness and functionality<\/li>\n<li>Compatibility, interoperability and availability of updates, for goods with digital elements<\/li>\n<li>Fitness for a specific purpose indicated by the consumer<\/li>\n<li>Suitability for the purposes for which the product is normally used<\/li>\n<li>The product\u2019s features, quantity and safety<\/li>\n<li>Supply with accessories and instructions<\/li>\n<li>Conformity with a sample or model made available before purchase<\/li>\n<\/ul>\n<p><strong>Important:<\/strong> You are not liable for a lack of conformity if, <strong>before the contract is made<\/strong>, you inform the consumer of the specific lack of conformity and the consumer accepts it. Document that acceptance.<\/p>\n<h2>Liability periods for lack of conformity<\/h2>\n<p>The period of your liability depends on how the product is supplied.<\/p>\n<h3>Continuous supply, such as a subscription or SaaS<\/h3>\n<ul>\n<li>You are liable for a lack of conformity throughout the <strong>entire supply period<\/strong> specified in the contract.<\/li>\n<li>The presumption operates in the consumer\u2019s favour: if a lack of conformity becomes apparent during the supply period, it is presumed to have occurred during that period.<\/li>\n<\/ul>\n<h3>One-time supply or supply in instalments<\/h3>\n<ul>\n<li>You are liable for a lack of conformity that existed when the product was supplied and became apparent within <strong>2 years<\/strong> of supply.<\/li>\n<li>Presumption: if the lack of conformity becomes apparent within <strong>1 year<\/strong> of supply, it is presumed to have existed when the product was supplied.<\/li>\n<\/ul>\n<p>In both cases, if you claim that the lack of conformity did not exist when the product was supplied, <strong>you must prove it<\/strong>.<\/p>\n<h2>What to do when a consumer reports a lack of conformity<\/h2>\n<h3>Step 1: Bring the product into conformity<\/h3>\n<p>A consumer may ask you to bring the digital content or service into conformity with the contract. You must do so within a <strong>reasonable time<\/strong>. The rules do not specify a particular period, so assess it in light of the product\u2019s nature and the extent of the lack of conformity.<\/p>\n<h3>Step 2: Refusal if the cost is excessive<\/h3>\n<p>You may refuse if bringing the product into conformity would involve excessive cost. The consumer then moves to step 3.<\/p>\n<h3>Step 3: Reduce the price or withdraw from the contract<\/h3>\n<p>The consumer chooses one of the following:<\/p>\n<ul>\n<li><strong>Price reduction<\/strong>: you refund the difference between the original and reduced price within <strong>14 days<\/strong> of receiving the request.<\/li>\n<li><strong>Withdrawal from the contract<\/strong>: you refund the part of the price corresponding to digital content or a digital service that does not conform or was not supplied, also within <strong>14 days<\/strong>.<\/li>\n<\/ul>\n<p>If digital content was supplied on a tangible medium, the consumer returns it at your request, which must be made within 14 days of withdrawal. The consumer pays the cost of return postage.<\/p>\n<p><strong>Limitation:<\/strong> A consumer cannot withdraw from a contract if the lack of conformity is <strong>minor<\/strong>. However, the presumption operates in the consumer\u2019s favour. If you claim the lack of conformity is minor, you must prove it.<\/p>\n<h2>Duty to supply without undue delay<\/h2>\n<p>You supply the digital content or service <strong>without undue delay after the contract is made<\/strong>, unless the contract or terms specify another date.<\/p>\n<p>What does \u201cwithout undue delay\u201d mean? The rules do not define it, but in practice allow <strong>no more than a few hours<\/strong> after the contract is made.<\/p>\n<p>A consumer may withdraw from the contract without an additional request if:<\/p>\n<ul>\n<li>You stated, or the circumstances clearly show, that you will not supply the digital content or service.<\/li>\n<li>The delivery time was important to the consumer and you did not meet it.<\/li>\n<\/ul>\n<h2>Updates to digital content and services<\/h2>\n<h3>Your duty<\/h3>\n<p>You must supply an update if it is necessary to keep the digital content or service in conformity with the contract.<\/p>\n<h3>The consumer\u2019s responsibility<\/h3>\n<p>You are not liable for a lack of conformity if the consumer <strong>does not install an update within a reasonable time<\/strong>, provided that you informed them about the available update and the consequences of not installing it.<\/p>\n<h3>Changes to continuously supplied content and services<\/h3>\n<p>If you supply content or a service continuously, you may make changes only:<\/p>\n<ul>\n<li>In accordance with the contract<\/li>\n<li>For justified reasons specified in the contract<\/li>\n<\/ul>\n<p>If a change makes it harder for the consumer to access the digital content or service, the consumer may <strong>terminate the contract without notice<\/strong> within <strong>30 days<\/strong> of the change or of being informed about it.<\/p>\n<h2>What to change in your online store: checklist<\/h2>\n<ol>\n<li><strong>Classify your products<\/strong>: identify which are digital content, digital services and goods with digital elements.<\/li>\n<li><strong>Implement a consent mechanism<\/strong>: make sure the store obtains the consumer\u2019s prior consent to supply digital content before the withdrawal period expires and records their acknowledgement that they will lose the right to withdraw.<\/li>\n<li><strong>Configure automatic confirmations<\/strong>: after obtaining consent, send the consumer confirmation on a durable medium, such as email.<\/li>\n<li>Update your <a href=\"https:\/\/sawaryn.com\/publikacje\/co-powinien-zawierac-regulamin-sklepu-internetowego\/\"><strong>online store terms and conditions<\/strong><\/a>: adapt the complaint procedure to the rules on digital content and services that do not conform to the contract, including liability periods and presumptions.<\/li>\n<li><strong>Set delivery times<\/strong>: if you do not supply the content or service immediately, state a specific delivery time in your terms.<\/li>\n<li><strong>Describe update rules<\/strong>: state in the contract when and on what terms you supply updates, and the consequences of not installing them.<\/li>\n<li><strong>Prepare a complaint-handling procedure<\/strong>: include the available steps, bringing the product into conformity, reducing the price or withdrawing from the contract, and the 14-day refund periods.<\/li>\n<\/ol>\n<h2>Frequently asked questions<\/h2>\n<p><strong>What is the difference between digital content and a digital service, and why does it matter for an online store?<\/strong><br \/>\nDigital content is a product supplied on an intangible medium, such as an e-book, online course or audio file. A digital service is supplied continuously or repeatedly, for example cloud storage or email. The distinction directly affects withdrawal rules, complaint procedures, the seller\u2019s liability periods and information duties towards consumers. If you classify a product incorrectly, you may apply the wrong rules and face disputes over refunds and complaints.<\/p>\n<p><strong>When does a customer lose the right to withdraw from a contract for an e-book, online course or other digital content?<\/strong><br \/>\nA consumer loses the right to withdraw from a contract for digital content supplied on an intangible medium when you meet all three conditions together: you obtain the consumer\u2019s prior consent to begin supply before the 14-day withdrawal period expires; the consumer acknowledges that they will lose the right to withdraw once the content is supplied; and you provide confirmation that you received the consent on a durable medium, such as email. If any one of these elements is missing, the consumer retains the right to withdraw.<\/p>\n<p><strong>What duties does a seller have when a consumer reports that digital content or a service does not conform to the contract?<\/strong><br \/>\nFirst, you must bring the digital content or service into conformity within a reasonable time. If doing so would involve excessive cost, you may refuse. The consumer may then request a price reduction or withdraw from the contract, and you must refund the relevant amount within 14 days of receiving the request. A consumer cannot withdraw only when the lack of conformity is minor, but you must prove that it is minor because the presumption operates in the consumer\u2019s favour.<\/p>\n<p><strong>How long is a seller liable for digital content or a service that does not conform to the contract?<\/strong><br \/>\nFor continuous supply, such as a subscription or SaaS, you are liable throughout the supply period specified in the contract, and the presumption operates in the consumer\u2019s favour throughout that period. For one-time supply or supply in instalments, you are liable for a lack of conformity that existed when the product was supplied and became apparent within 2 years. If it becomes apparent within the first year, it is presumed to have existed when the product was supplied.<\/p>\n<p><strong>What should change in your terms and sales process after the Digital Directive?<\/strong><br \/>\nStart by classifying products as digital content, digital services or goods with digital elements, because the applicable rules depend on that classification. Then implement a store mechanism for prior consent to supply digital content before the withdrawal period expires, configure automatic email confirmations, update the terms to cover liability periods and complaint procedures, including bringing the product into conformity, price reductions or withdrawal from the contract with 14-day refund periods, and describe update rules and the consequences of not installing updates. If you do not supply content or a service immediately after the contract is made, state a specific delivery time in the terms.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The Digital Directive introduces a new definition of a digital service into Polish law, distinguishing digital content from digital services. Why does this distinction matter?<\/p>\n","protected":false},"author":3,"featured_media":1885,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"","sip_alt_url":"","sip_en_pl_url":"","sip_pair_uuid":"","sip_pair_state":""},"categories":[1583],"tags":[1613,1551,1590],"specialization":[1210],"practice_area":[],"class_list":["post-3987","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-digital-law","tag-digital-law","tag-e-commerce-en","tag-online-store-terms-and-conditions","specialization-digital-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3987","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/comments?post=3987"}],"version-history":[{"count":2,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3987\/revisions"}],"predecessor-version":[{"id":4065,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3987\/revisions\/4065"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/media\/1885"}],"wp:attachment":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/media?parent=3987"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/categories?post=3987"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/tags?post=3987"},{"taxonomy":"specialization","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/specialization?post=3987"},{"taxonomy":"practice_area","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/practice_area?post=3987"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}