March 1, 2016

Ukie considers that the Draft Directive should not proceed due to its impact on business models in the video games industry.  It does not meet the de-regulatory objective of the Digital Single Market strategy and conflicts with existing and planned EU and Member State consumer law, causing confusion to consumers and businesses, Ukie says.  As currently drafted the Draft Directive represents a significant departure from existing law and does not appreciate or take sufficient account of:

• how video games and other digital content are developed and made available to the public;
• what the consumer expects when purchasing such digital content;
• the different types of data that are generated when such digital content is accessed;
• how that data is used by the developers and suppliers of such digital content; and
• the importance of the availability of such data to the digital economy.

Ukie recommends that the REFIT process and upcoming review of the Consumer Rights Directive should be undertaken to assess consumer law holistically before introducing a new Directive such as this.

Further, Ukie says, if the Directive does proceed, digital content provided without a monetary price being paid should not be within the scope of the Directive.  Defects in such content would, in most cases, not have an impact on the economic interests of consumers.  If digital content provided without a monetary price being paid remains in scope, significant redrafting will be required to avoid confusion for businesses and consumers.

In addition, restricting how content can be modified after consumers have purchased access will result in reduced digital innovation in the video games industry, Ukie says.  Redrafting is required to clarify when modifications will justify remedies for consumers, or offering such updates will become too risky for businesses.

Moreover, Ukie says, requirements to return data and content to consumers after they terminate a contract to access digital content do not reflect the realities of the market or consumer expectations. It would be unreasonably costly, or in certain cases technologically infeasible, for video games companies to comply.  Furthermore, in Ukie’s view, the Directive contradicts existing data protection law, which allows for the return of data to consumers.  To read Ukie’s press release and to access the response document, click here.