Consumer advice information

This guidance is for England, Scotland and Wales

The Consumer Rights Act 2015 (referred to in this guide as 'the law') gives you important rights when you make a contract with a trader for the supply of goods, services and digital content.

This guide offers a clear explanation of the rights you have when a trader supplies digital content to you and the remedies you have if things go wrong.

WHAT IS A CONTRACT?

This law only applies to contracts between a consumer and a trader.

A contract is a legally binding agreement between you and the trader. A contract is formed when you make an offer to buy, the trader accepts your offer, the price is agreed between you and you both intend to make the contract legally binding. The rules of the contract are called 'terms', such as the price of the digital content and how it will be supplied to you and those that are imposed by the law, referred to as your 'statutory rights'. Contracts can be written, spoken and even implied by conduct (so-called 'silent contracts' where no words are spoken but it is a contract all the same). In most cases, the supply of digital content will be a written contract. The 'Unfair terms in consumer contracts and notices' guide gives more information on how a contract is formed and when the terms of a contract may be unfair to you.

WHAT IS DIGITAL CONTENT?

The law defines 'digital content' as "data which are produced and supplied in digital form". It is not dealt with in the same way as goods and services.

Examples of digital content:

• computer software
• apps (short for 'applications' and usually linked with software that allows you to access activities on your smartphone or tablet, such as news, weather, social media)
• games
• ringtones
• e-books
• online journals
• television
• music
• video

Digital content can be supplied in physical form, such as on a DVD and in an intangible form (something you cannot physically touch), such as when you download or stream it and when you access it via the internet.

WHICH CONTRACTS DOES THE LAW APPLY TO?

The law applies to:

• digital content that you have paid for
• digital content supplied free of charge with goods, services or other digital content that you have paid for, and which is not generally available without buying such goods, services or other digital content
• digital content that was paid for with a facility, such as virtual currency, a token or gift voucher, that was originally bought with money

Digital content that is supplied in physical form, such as on a DVD, is considered to be goods and the rights and remedies you have under the sale and supply of goods part of this law apply. The 'Sale and supply of goods: your consumer rights' guide gives more information.

Some contracts may involve a trader supplying you with goods, digital content and/or a service. These are called 'mixed contracts' - for example, buying a laptop from a trader and arranging for them to supply and install anti-virus software for you. The 'Sale and supply of goods: your consumer rights' and 'Supply of services: your consumer rights' give information on the rights and remedies you have for the other parts of a mixed contract.

If a trader supplies a service to enable digital content to reach you (such as your internet service provider or mobile network operator) you will have rights and remedies under the supply of services part of the law. See 'Supply of services: your consumer rights' for more information. If your internet service provider or mobile network operator then makes a separate contract with you to supply digital content, this part of the law applies and is covered by this guide.

The statutory rights and remedies you have when you pay for digital content (or when its supply is linked with payment for goods, services or other digital content) do not apply when it is supplied totally free of charge. However, you are entitled to be compensated if the digital content causes damage to your device (such as your mobile phone or your laptop) or to any other digital content. The 'unfair terms' part of the law also covers free digital content.

WHAT STATUTORY RIGHTS DO YOU HAVE?

The law sets out what you are entitled to expect from digital content that is supplied by a trader. These are commonly referred to as your 'statutory rights'. If the digital content fails to meet your expectations because it is faulty, then it does not 'conform to the contract'.

Digital content is considered to have been supplied to you when it reaches your device or is delivered by a trader such as an internet service provider or mobile network operator with whom you have a service contract, whichever happens first.

In the first instance, it is part of the contract that a trader must have the 'right to supply' the digital content to you. For example, an online football game may include the names, slogans and logos of football clubs and football players; the trader must have the legal right to use these before they can supply the game. If they do not, then you are entitled to a refund. The 'What if your statutory rights are not met?' section below gives a further explanation.

You have the right to expect that the digital content is of 'satisfactory quality'. This means that it meets a standard that a reasonable person would consider satisfactory, taking account of any description applied, the price (if relevant) and all other relevant circumstances. The state and condition of the digital content, its fitness for purpose, safety, durability and freedom from minor defects are all important factors when considering its quality. For example, if you pay to download an e-book but the pages of the book are not in their correct order, the e-book is not of satisfactory quality. If the quality of the colour on the front cover of the e-book is poor but the content is fine, the 'reasonable person' may accept that the e-book overall is of satisfactory quality. Public statements, such as those in advertising or on labelling, made by the trader, the producer or their representative about the digital content, must be accurate and can also be taken into account when deciding if it is of satisfactory quality.

Take note: if a trader makes you aware that the digital content has a fault, if you examine the digital content and ought to have noticed a fault or if you examined a trial version of the digital content and ought to have noticed a fault, then you cannot later claim that the digital content is not of satisfactory quality. You still have rights if the digital content has a different fault.

If you make a trader aware that you want digital content to be 'fit for a particular purpose' (even if it is something that it is not usually supplied for) then you have the right to expect that it is fit for that purpose. So, if you inform the trader that you want to buy online anti-virus software for a laptop with an old operating system and the trader agrees that it is suitable, then it has to be fit for that purpose. If you go against the advice of the trader and continue with a purchase, you cannot later claim that the digital content was not fit for the purpose you stated. So, if the trader advises you that the anti-virus is not compatible with your laptop's operating system and you go ahead with the purchase only to discover it does not work, you are not entitled to a refund.

You have the right to expect that the digital content is 'as described'. Even if you examine a trial version and find that the actual digital content matches or is better than the trial version, it still has to match any description given to you by the trader.

It is an important element of a contract that traders must give you specific pre-contract information, as set out in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. In particular, information given to you by the trader about the main characteristics, functionality and compatibility of the digital content forms part of the contract. The 'Buying from business premises: on-premises contracts explained', 'Buying by internet, phone and mail order: distance contracts explained' and 'Buying at home: off-premises contracts explained' guides explain what these pre-contract requirements are. If a trader does not provide the required information, you can make a claim to have your costs (if you have any) reimbursed.

Supply by transmission and facilities for continued transmission. The digital content you buy is generally transmitted to you across a network, such as internet, mobile or cable networks. The law states that the trader is responsible to you for the quality, fitness for a particular purpose and description of the digital content throughout the transmission process to the time it reaches your device, either directly or via any other trader you have a contract with - for example, an internet service provider or a mobile network operator.

Any processing facility that allows you to use the digital content must do so for a reasonable time, unless the time is fixed in the contract. This means that if you download a film that states it is available to view for three days, then you must have access to it for that time.

Quality, fitness and description of digital content when it has been modified. There are times when the trader may modify the original digital content - for example, by providing updates. This is fine as long as it is part of the contract and that, after the modifications have been completed, the digital content is still of satisfactory quality, fit for a particular purpose and as described. This requirement does not prevent a trader from improving features or adding new ones to digital content, but it should continue to match its description and have the same characteristics, functionality and compatibility you were told about before the contract was made.

DO YOU HAVE THE RIGHT TO CHANGE YOUR MIND?

Most contracts for the supply of digital content when it's in an intangible form will be made at a distance (without face-to-face contact with the trader). Under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 you have the right to cancel most 'distance' contracts within a cancellation period of 14 days. A trader can supply digital content before the end of the 14-day cancellation period, but they must obtain your express consent and you must acknowledge that your right to cancel will be lost.

The 'Buying by internet, phone and mail order: distance contracts explained' guidance gives more information.

WHAT IF YOUR STATUTORY RIGHTS ARE NOT MET?

If the digital content is faulty, not fit for purpose, not as described, or if other rights are not met, then the trader is in breach of contract. This means that you are entitled to seek a legal remedy. This section explains what remedies are available to you.

RIGHT TO REPAIR OR REPLACEMENT

If the digital content does not 'conform to the contract' which means is not of satisfactory quality, fit for purpose or as described, then you are entitled to a repair or replacement. In the case of digital content, repair usually means carrying out a function that makes it work. Is an update classed as a repair? If the trader issues an update to all its digital content users in order to fix a problem, it can be considered a repair.

The repair or replacement must be carried out within a reasonable time and without causing you significant inconvenience. You will need to demonstrate what makes the trader's offer to repair or replace significantly inconvenient if you want to opt for another remedy.

You cannot insist that the trader repairs or replaces the digital content if either remedy is impossible or too costly when compared to other remedies you may have. You cannot switch between repair and replacement until you have given the trader a reasonable time to carry out the chosen remedy, unless of course it causes you significant inconvenience.

RIGHT TO A PRICE REDUCTION

If repair or replacement of the digital content is not possible or cannot be carried out within a reasonable time or without causing you significant inconvenience, then you are entitled to a reduction in the price. This can be as much as a full refund if, for example, you have had no benefit from the digital content. A price reduction can be calculated by comparing the difference between the contract price and the value of the digital content actually received or used.

The trader must give you a refund without undue delay and in any event within 14 days from the time they agreed you were entitled to it. This must be by the same means of payment you used to make the purchase. However, an alternative can be used if you clearly agree to this.

RIGHT TO A REFUND

You are entitled to a full refund if the trader does not have the legal right to supply the digital content to you. However, if the trader had the right to supply some but not all of the digital content, then you will only be entitled to a refund for the part that they did not have the right to supply.

The trader must give you a refund without undue delay and in any event within 14 days from the day on which the trader agreed you were entitled to it.

DO YOU HAVE TO PROVE THAT THE DIGITAL CONTENT IS FAULTY TO CLAIM YOUR RIGHTS?

If you discover a fault with the digital content within six months from the date it was supplied to you, then in most cases it is presumed that the fault was there when you bought it. It is for the trader to prove otherwise. They may, for instance, believe that you have damaged or misused the digital content. This is commonly referred to as the 'reversed burden of proof'.

After six months, the burden of proof switches back to you, so you have to prove the item was faulty when you bought it if you want to make a claim against the trader.

DAMAGE CAUSED TO YOUR DEVICE OR OTHER DIGITAL CONTENT: WHAT CAN YOU CLAIM?

If a trader supplies you with digital content that damages your device (such as your mobile phone or laptop) or it causes damage to other digital content, which would not have occurred if the trader had taken reasonable care, then you are entitled to either:

• have the damage repaired for free, within a reasonable time and without significant inconvenience to you
  ... or
• be compensated for the damage caused

Any compensation payment must be made without undue delay and in any event within 14 days from the date on which the trader agrees you are entitled to it.

DO YOU HAVE ANY OTHER REMEDIES?

Your statutory rights are automatically included in the contract you have with the trader. If they are not met, then the trader is in breach of contract. This means that you can use one of the legal remedies described in the 'What if your statutory rights are not met' section. However, you might decide to take a different route to seek redress.

If you enter a contract because a trader misled you or because a trader used an aggressive commercial practice, the Consumer Protection from Unfair Trading Regulations 2008 give you rights to redress: the right to unwind the contract, the right to a discount and the right to damages. The 'Misleading and aggressive practices: rights to redress' guide gives more information. You can report complaints about unfair trading practices to the Citizens Advice consumer service for referral to trading standards.

If you paid for digital content on finance arranged by a trader or if you paid for digital content using your credit card and it costs more than £100 but less than £30,000, you have rights under the Consumer Credit Act 1974. Section 75 of the Act makes the finance / card provider as responsible as the trader for a breach of contract or misrepresentation. This could include supplying faulty digital content, failure to supply digital content or making false claims about digital content. You are entitled to take action against the trader, the finance / card provider or both.

If you are unhappy with the finance / card provider's response, then you can complain to the Financial Ombudsman Service.

HOW LONG DO YOUR RIGHTS LAST?

In England and Wales, you have a limit of six years from the date of the breach of contract (when the faulty digital content was supplied) in which to make a claim against the trader. This works a little differently in Scotland where you have a limit of five years to make a claim, starting from the time you became aware the digital content was faulty.

This does not mean that the digital content has to last the five or six years; it depends on what is reasonable for the type of digital content supplied.

WHAT IF A TRADER HAS A 'NO REFUNDS' TERM WRITTEN IN THE CONTRACT?

A trader is not allowed to exclude or restrict your legal rights in any way. If you inadvertently agree to a term in a contract that excludes or restricts your rights, you are not bound by it because it is considered an 'unfair term'. The 'Unfair terms in consumer contracts and notices' guide gives more information. If a trader tries to restrict or exclude your rights, report it to the Citizens Advice consumer service.

If a trader had a 'no refunds' policy, it is likely to be an unfair trading practice. The Consumer Protection from Unfair Trading Regulations 2008 prohibits unfair trading practices. If you think a trader is trading unfairly, report it to the Citizens Advice consumer service for referral to Trading Standards.

WHAT TO DO IF THINGS GO WRONG?

This guide gives you all the information you need on the rights you have and the remedies you are entitled to. The 'Supply of digital content: what to do if things go wrong' guide explains the practical steps you can take when complaining to a trader about digital content.

IN THIS UPDATE

No major changes.

Last reviewed / updated: January 2024

Key legislation

• Consumer Credit Act 1974
• Consumer Protection from Unfair Trading Regulations 2008
• Consumer Contracts (Information Cancellation and Additional Charges) Regulations 2013
• Consumer Rights Act 2015

Please note

This information is intended for guidance; only the courts can give an authoritative interpretation of the law.

The guide's 'Key legislation' links may only show the original version of the legislation, although some amending legislation is linked to separately where it is directly related to the content of a guide. Information on amendments to legislation can be found on each link's 'More Resources' tab.

For further information in England and Wales contact the Citizens Advice consumer service on 0808 2231133. In Scotland contact Advice Direct Scotland on 0808 164 6000. Both provide free, confidential and impartial advice on consumer issues.

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