The third instalment of our Consumer Law Q&A series looks at common queries surrounding consumer rights and remedies relevant to the provision of free digital content, following the introduction of the Consumer Rights Act 2015 (“CRA”).
Does a trader have any liability to consumers for defects in digital content provided for free and not in conjunction with other paid for goods, services or digital content?
Yes, the trader will be liable for all digital content contractually supplied to a consumer, whether paid for or free, where the content causes damage to the consumer’s device or other digital content and that damage would not have occurred if the trader had exercised reasonable care and skill.
What does “reasonable care and skill” mean?
This will be judged against the standards of the relevant professional. For example, where the trader has not done something that other traders in his field would do and this failure has caused damage, it is unlikely the trader will meet the required standard of reasonable care and skill. What is considered “reasonable” will also depend on the circumstances at hand, for example if there were significant time constraints on the provision of the digital content in response to an emergency update there may be more flexibility in the standard of care and skill required to have been exercised.
What remedies do consumers have for damage caused by defective free digital content?
The trader can either offer to repair the damage within a reasonable time (provided this will not cause significant inconvenience to the consumer) or compensate the consumer for the damage with an appropriate financial payment. Where the trader repairs the damage, the trader must also bear any necessary costs incurred due to the repairs, including the cost of any labour, materials or postage.
When repairing damage caused, what do the terms “reasonable time” and “significant inconvenience” mean?
These terms will be assessed by considering the nature of the device or digital content that is damaged and the purpose for which it is used by the consumer.
Are there any time limits within which the trader must pay compensation due to a consumer?
Compensation payments must be made without undue delay and, in any event, within 14 days from the date the trader agrees that the consumer is entitled to compensation. It is important to note that a trader cannot charge the consumer any fees in respect of the payment.
If you require further advice on how the Consumer Rights Act 2015 will impact on your business, please contact Annabelle Harrison, Nicola Broadhurst or another member of the Stevens & Bolton commercial team.