Your Lordships will be glad to know that this is my third of three amendments, and then I will have a rest and noble Lords will have a rest from me. Then again, you may not wish to know that the noble Lord, Lord Clement-Jones, will follow; with his detailed knowledge and expansive style, he may be in the same position.
Clause 34 requires that digital content sold to consumers must be “of satisfactory quality”, according to the expectations of a “reasonable person”. I am sure that it is obvious to all concerned that there are several different factors that will affect whether or not the quality expectations of a reasonable person are going to be met. These factors are: any description of the digital content, the price paid and its state and condition, as well as any other relevant circumstances. That is a very broad definition. The clause sets out that the content should be free “from minor defects”, and this is to be judged by the “reasonable person” standard, too. Therefore, a reasonable person could be said to expect a music file to work without playback problems, but if the software is complex it may be impossible to release a perfect version, and so the reasonable person would be expected to accept minor defects.
However, consumers are reporting problems with digital content. A recent EU study found consumers reporting one or more problems at, in the category of
music, a level of 16% of downloads; for games it was 16%; for ringtones it was 19%; for antivirus software it was 23%; and for e-learning—presumably not TES—it was 22%. Our amendment would protect consumers where claims are made about the outcomes of a digital purchase. This follows on from the debate last week about tangible goods and what is “satisfactory”. There are obviously differences in relation to digital content. If, for example, a piece of antivirus software claims to remove all viruses or that it will protect your computer for two years and it turns out that it does not, a consumer should be able to rely on this outcome claim in being able to prove that this digital content is or is not of satisfactory quality.
In this area there are major differences between what the least and the most knowledgeable people understand about the products they can purchase, and therefore about what their expectations should be. The draft legislation assumes that digital goods should have a clear and specific purpose. That may seem a straightforward aim: it seems like an obvious truth that a product should do what it says on the tin. However, the short history of digital innovation shows that frequently the most successful innovations do not happen in ways that were expected when they first began. Amazon, Google and Facebook are obviously now used for much more than simply buying books, providing lists of links or student dating, although I gather from my children that Facebook still does have that function.
So, given that flexibility of purpose is both valued by consumers and critical to the evolution of digital goods, surely the legislation should take care that assumptions about the need for digital goods to have a specific purpose do not stand in the way of the innovation that consumers value and expect developers to deliver. Obviously, the ordinary consumer knows that they will need antivirus software before going on to the internet but they may not know how it works, what it will and will not stop and the nature of the latest threats. This places them in a far weaker position if they are negotiating with a trader.
If the consumer specifies that the digital content will be used for a particular purpose, the digital content must be fit for that particular purpose. For example, if a consumer tells a trader they want a piece of educational software for their preschool child and finds that it is in practice only suitable for an older child, we need to be able to say that it would not be fit for that particular purpose.
The clause also covers digital content supplied for a particular purpose, even where that is outside the usual purpose of goods of that type. This may be most applicable to specialist software, where a person may be seeking to use software in an innovative way. For example, PowerPoint can be used to design posters as well as doing slideshows, so a trader could conceivably sell this software for that purpose. However, posters designed using this software are not really of good enough quality to print and use and there are much better products available to do this. So, in some senses, it is not fit for purpose. This could be a problem for small businesses which may buy a piece of software off
the shelf because they cannot afford a bespoke version and are then in trouble when it turns out not to be able to function as they intended.
Amendment 35 seeks to cover any public claims made by the trader about what the software may or may not be able to do that is not a usual function which would affect whether it is fit for purpose. This is a somewhat complex issue and will only apply in rather limited circumstance as interactions between buyer and seller will generally be private and not made publicly. So the amendment is quite narrow and would cover, say, a scenario where a trader was asked about a product in a public arena, such as a trade fair, and said, for example: “If you want to design posters without paying for specialist software, download PowerPoint for half the price and use that”. The consumer could then rely on this right by saying that the public statement did not achieve the quality outcomes that they needed. I beg to move.
4.30 pm