The impact of the Digital Content Directive on online platforms’ Terms of Service

Abstract The Digital Content Directive 2019/770 (the DCD), aiming to foster the Digital Single Market and improve consumer protection, became applicable on 1 January 2022. This article presents the results of the study of 100 Terms of Service (ToS) of online platforms, conducted to evaluate the Directive’s impact. By combining black letter analysis with qualitative and quantitative empirical research, the contribution sheds new light on the Directive’s assumptions, critically assesses its logic, and makes regulatory suggestions for European lawmakers. Our central finding is that a significant number of the studied contracts (28 per cent) do not contain descriptions of the digital content offered. Many of those that do, keep the descriptions extremely vague. Hence, the central institution of the Directive—conformity with the contract—might be less valuable than the lawmakers have assumed. Even though the DCD introduces the concept of ‘objective’ conformity, we show how, in the digital environment, it might lower legal certainty, defeating one of the purposes of the Directive. Moreover, we also demonstrate how the analysed ToS often fail to meet other requirements, such as the right to retrieve one’s content or the protection from unilateral content deletion. This begs the question about the regulatory approach, the efficacy of the chosen enforcement scheme and, more generally, the enforcement schemes used throughout the EU’s private law. To remedy these problems, we suggest engaging in more empirical research when designing future measures to protect consumers online and considering supplementing the existing enforcement schemes with administrative oversight like the one in the Digital Services Act.