Lack of Compliance with the GDPR as a Premise for Non-Conformity of Digital Content or Services with the Contract

Abstract

According to Recital 48 of Directive 2019/770, facts leading to a lack of compliance with requirements provided for by the GDPR may constitute a lack of conformity of the digital content or digital service with the contract. The paper aims to clarify the meaning of the above concept. It starts with presenting the origins of the solution, followed by examples of its application in the case of subjective and objective non-conformity. Finally, its impact on the relationship between businesses and consumers is considered. In particular, it analyses when the breach of the GDPR can constitute a premise for the non-conformity of digital content or services with the contract and how such a breach will be addressed by remedies provided for in the sales law. The main hypothesis of the paper is that the remedies specific to sales law cannot always be applied directly to protect against breaches caused by non-compliance with the GDPR. If they are to protect consumer rights when digital content or services are in play, which is the purpose of Directive 2019/770, their interpretation must consider the specificity of GDPR. In this context, the paper considers to what extent the body of doctrine and case law on non-conformity, developed on the grounds of the sales law, can be applied to contracts for digital content and services. Finally, the paper addresses the problem of the so-called hybridization of public and private law. It indicates a new dimension of the synergy of these two fields of law in the context of the mutual influence of consumer law and personal data protection law.