Payments with personal data for digital content or services, under the umbrella of consumer protection legislation as of 9 January 2022

The Romanian Government enacted the Emergency Ordinance no. 141/2021 on certain aspects of agreements for the provision of digital content and services ("Ordinance no. 141/2021") transposing the EU Directive 2019/770, which aims to harmonize the contractual landscape of the digital single market in the European Union and to increase the confidence of both consumers and providers while performing online cross-border transactions.

Individuals who make payments with their personal data in exchange for digital content and services will benefit from the same enhanced rights as any other consumer in relation to such content or services.

For example, if someone gives their data in exchange for the purchase of software, music, movies, books, video games, mobile applications, etc., that person will be entitled to a product of a certain type and quality (according to the specifications presented by the provider) and will benefit from the same legal guarantee for products and services as those who pay in cash for them. Also, he/she will have access to certain remedies if the provider fails to comply with his/her rights.

You have probably encountered the situation where in exchange for a book, a report or other content or digital service, you provided your personal data because that was all you had to do to access or download it. Usually, the e-mail address was requested in exchange for such digital content. The service or digital content providers presented this situation as a free provision of that service or content. In reality, however, this was not the case at all. Because that personal data you provided was the tool of exchange for that digital service or content.

The change is welcomed as, for the first time, the Romanian legislation expressly regulates an aspect related to "payment" with personal data. Currently, the protection of the data subject is ensured only by data protection legislation, which does not cover the rights and interests of the consumer (i.e. to be provided with a quality product, to be assured of the product functionality for a specific period, etc.) and consumer legislation only applies to those who pay with money for a goods or services.

Thus, consumers buying services or digital content with their data will have, for example:

• the right to receive what was promised to them and/ or the content or digital services that could reasonably be expected - content or services must meet certain subjective and objective compliance requirements, such as the normal performance of such content or service, as well as the provision of instructions and/ or accessories that the consumer can reasonably expect to receive;
• access to remedies, where the content or services provided are inconsistent with what has been agreed with the provider or can reasonably be expected, or if the provider fails to supply such content or services - consumer's right to obtain and correlative provider’s obligation to supply the digital content or service in accordance with the applicable standards, and the possibility to proportionally reduce the price or even to terminate the agreement when non-compliance is of considerable importance; and
• the right to benefit from legal guarantees just like anyone else who pays with money for the same services or content.

As of January 9, 2022, digital and content service providers will need to update the terms of use posted on their websites as to inform consumers about new conditions, such as content or service updates over time. We refer here to situations where updates may significantly change the user experience beyond those required for functionality (e.g., micro-transactions in an online video game for certain features that were previously free). According to the new Ordinance no. 141/2021, such updates must meet certain conditions, including:

• the agreement stipulates on such an update and provides a valid justification for it;
• the update does not involve additional costs for the consumer;
• the consumer is informed on the update in a clear and easy-to-understand manner;
• if the update has a negative impact on access to the digital content or service or on the user experience, the consumer must be previously informed on the characteristics and date of the update and on the right to terminate the agreement or the possibility to maintain the digital content or service without the update in question.

Ordinance no. 141/2021 also provides for sanctions in case of non-compliance with its provisions. Such range between EUR 1,000 and 10,000 and can be imposed by the inspectors of the National Authority for Consumer Protection. In addition, the provider may be obliged to observe the compliance requirements of the content or service sold or to reimburse the amounts received from consumers.

Last but not least, the provisions of Ordinance no. 141/2021 are mandatory. In other words, the provider and the consumer will not normally be able to conclude agreements that derogate from the provisions of this legislation.

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For more details, you can contact Ramona Chitu, TMT Department at Stratulat Albulescu Attorneys at Law, at the e-mail address: RChitu@saa.ro.