The Norwegian Digital Content and Services Act will come into force on 1st January 2023. The act introduces a number of new restrictions on agreements for digital services and contents with consumers in terms of duration, termination and maximum commitment periods. Consumers are also given a number of mandatory minimum rights in respect of breach of contract, that are largely modeled on existing Norwegian consumer protection principles.
The act is based on EU Directive 2019/770 regarding certain aspects of agreements on the provision of digital content and digital services, but introduces important additional obligations for providers that are particular to Norway.
Providers of digital services and content must revise terms, routines and customer journeys to comply with the new legislation.
Rules specific to Norway?
The Act introduces a number of rules that go beyond the directive’s minimum requirements. Providers should be aware of this extension, such as:
- Commitment periods exceeding 6 months are normally not permitted
- Commitment periods are only valid if the consumer is given a proportionate benefit
- Consumers are entitled to cancel subscriptions subject to monthly pre-payments at any time with effect from the next payment period
- Providers will have to actively notify consumers of their active subscriptions, and of their right of cancellation, at least every six months. Failure to provide such notice will entitle the consumer to terminate the agreement without cost from the date such notice should have been sent.
- Rights and obligations regarding breach of contract have elements specific to Norway
International suppliers targeting Norwegian consumers, must adapt their terms and routines so that they comply with the new legislation.
When does the act apply?
The Digital Content and Services Act applies to the delivery of digital content and services to consumers against remuneration. In practice, this includes most services and content delivered over the Internet, including “apps” and other software, streaming services, and other digital contents and services such as online games, digital publications etc. The act also applies where the consumer “pays” with personal data.
What's new?
General: The Digital Content and Services Act will to some extent entail a codification of existing Norwegian consumer protection principles. The digital nature of the deliverables, and the fact that they are often provided on a subscription basis, entails that the new act focuses on inter alia duration, termination and the handling the dynamic delivery of evolving contents and services.
Delivery requirements: The act introduces default requirements for the deliverables, including quality expectations, version handling, and the right to make changes to the deliverables during the term of the contract. Suppliers should address this in the terms and conditions in a way that both provides the necessary flexibility and is compliant with the act.
Contract duration: The consumer will have a general right of termination and cancellation. Commitment periods are only allowed to the extent that the consumer receives a proportionate economic benefit, and commitment periods exceeding 6 months will as a general rule be prohibited (although up to 12 months is allowed in exceptional circumstances).
Suppliers are required to, at least every six months, actively notify the consumer that a subscription is active, and remind the consumer of its right to cancel the subscription. Failure to provide such notice will entitle the consumer to terminate the agreement without cost from the date such notice should have been sent.
The act also contains rules to protect the consumer against paying for services that are not used, including that non-payment in certain cases shall be interpreted as a termination on the part of the consumer.
Amendments: The act includes restrictions on the provider’s right to make changes to the service or the agreement during the term. Changes that affect the digital performance in a “not insignificant way” will provide a basis for termination of the agreement regardless of any commitment period, etc. It will be important for providers to address the right to make changes during the term in the terms and conditions.
Pricing: The act contains default provisions on what the consumer must pay, when payment is due, and restrictions on the supplier’s right to make changes in the prices. Terms and conditions must therefore contain appropriate provisions to allow for price amendments etc.
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