Consumer Rights Act 2022

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Application (Part 3)

49. (1) Subject to subsections (3) to (7) and sections 65 , 70 , 71 and 72 , this Part applies to any contract specified in subsection (2) that is concluded between a trader and a consumer on or after the day on which this section comes into operation.

(2) The contracts referred to in subsection (1) are—

(a) a digital content contract,

(b) a digital service contract,

(c) where a single contract between a trader and a consumer relates to—

(i) the supply of digital content or a digital service (the supply of such content or such a service or, as the case may be, both such content and such a service being referred to in this subsection as the “digital supply”), and

(ii) the supply of other goods or a service,

that contract so far as relating to the digital supply, and

(d) any contract where the digital content or digital service which the trader supplies or undertakes to supply to the consumer is developed in accordance with the consumer’s specifications.

(3) This Part (other than sections 51 and 60 ) applies to any tangible medium which serves exclusively as a carrier of digital content.

(4) This Part does not apply to any of the following contracts between a trader and a consumer:

(a) a service contract;

(b) a contract for the supply of an electronic communications service (other than a contract for the supply of a number-independent interpersonal communications service);

(c) a contract for the supply of healthcare;

(d) a contract for the supply of a gambling service;

(e) a contract for the supply of a financial service;

(f) a contract under which—

(i) a trader supplies software under a free and open-source licence, and

(ii) the consumer does not pay a price and any personal data provided by the consumer, other than the personal data that was processed for the purpose of supplying the digital content or digital service, is processed by the trader only for the purpose of improving the security, compatibility or interoperability of that software;

(g) a contract for the supply of digital content where the digital content is made available to the general public other than by signal transmission as part of a performance or event, including digital cinematographic projections;

(h) a contract for digital content provided by a public sector body in accordance with the European Union (Open Data and Re-use of Public Sector Information) Regulations 2021 ( S.I. No. 376 of 2021 ).

(5) For the purposes of subsection (4)(a), it is immaterial whether digital forms or means are used by a trader—

(a) to produce the output of the service to which the contract relates, or

(b) to deliver or transmit the service to a consumer.

(6) This Part does not apply to digital content or a digital service which is—

(a) incorporated in or inter-connected with goods with digital elements, and

(b) supplied with the goods under a sales contract,

irrespective of whether the digital content or digital service is supplied by a trader or any other person.

(7) In determining for the purposes of subsection (6) whether the supply of incorporated or inter-connected digital content or an incorporated or inter-connected digital service forms part of a sales contract, the digital service or digital content shall be presumed to form part of the sales contract whether or not the consumer is required to consent to a licensing agreement with a person other than the trader in order to access the digital content or digital service concerned.

(8) A reference in Chapter 2 or 3 of this Part to both a digital content contract and a digital service contract shall be construed as a reference to any contract to which this Part applies.

(9) Nothing in this Part shall affect the entitlement of a consumer to terminate a contract under section 29 (2) or 93 (2).

(10) In this section—

“gambling service” means a service that involves wagering a stake with pecuniary value in games of chance (including those with an element of skill, such as lotteries, casino games, poker games and betting transactions) by electronic means or any other technology for facilitating communication at the individual request of a recipient of such a service;

“healthcare” has the same meaning as it has in the European Union (Application of Patients’ Rights in Cross-Border Healthcare) Regulations 2014 ( S.I. No. 203 of 2014 ).