What digital content consumers (should) want: concretising the conformity requirements in the Digital Content Directive, a tentative suggestion

Abstract

Consumer expectations take centre stage in the objective conformity requirements in the Digital Content Directive (2019/771). Beyond some basics, there is a great deal of uncertainty about the implications of these references to expectations. In relation to digital content and digital services, consumers do not (and cannot) always have a fixed model concept of a product in mind. Despite its importance for traders' liability, the reasonable expectations about concrete digital products have received little attention in literature. In this paper, it is argued that analogies with analogue products are not a viable source to determine expectations and that regular market practices should likewise be discarded as the sole source of expectations. By contrast, it is tentatively suggested that the law itself may contribute to shaping the exact meaning of the open norm of reasonable expectations. This is illustrated by the potential expectations to transfer digital products to third parties and to ‘port’ user data.