My Lords, for the first time, this Bill clarifies what rights consumers have when they buy digital content. Those rights include that the digital content be of satisfactory quality. If, before making a decision to buy, a consumer relies on a claim as to the outcome of digital content, it is, in many cases, absolutely right that this claim should be taken into account when assessing whether the digital content is of satisfactory quality. It may not, however, be appropriate when the claim relates to factors such as the subjective enjoyment of the content, such as an action game trader saying that the game will give the consumer “the greatest thrill of your life”. Thank you to the Bill team for that one.
That is why, as with goods, one of the factors taken into account in an assessment of satisfactory quality is “other relevant circumstances”. Again, I would like to stress that Clause 34(5) provides that this includes,
“any public statement about the specific characteristics of the digital content”.
This could include key outcomes. Where a consumer has relied on a claim made by a trader as to the outcome of the digital content, in many cases they will therefore already be able to take this into account when judging whether or not the digital content is of satisfactory quality.
When we discussed the question of outcomes relating to goods, the noble Baroness, Lady Hayter, distinguished claims about the physical characteristics of goods from claims about the outcome that the goods were supposed to achieve. Noble Lords may remember that there was much talk about the efficacy of washing machines and washing powders. However, statements about digital content may form part of the description—if the statement says that a calendar will include details of all public holidays, for example. Consumers have clear remedies if digital content, like goods, is not as described.
Where consumers are deliberately misled—again, as we have discussed in relation to goods—consumers are also protected under the Consumer Protection from Unfair Trading Regulations. The Government have given consumers a private right to redress if these
regulations are breached, and we have clarified that they will apply to sales of digital content. These changes came into effect on 1 October. Under the Bill and the regulations, therefore, it is clear that there is strong consumer protection in place in relation to claims made by traders as to the outcome that digital content will achieve.
Earlier in Committee, the noble Baroness, Lady Hayter, expressed the view that if statements about outcome are already covered by the legislation, this should be included in the Bill to provide clarity to consumers. There may be a number of unintended consequences if that happened here. First, although it will in many cases be appropriate that public statements about the outcome of digital content should be taken into account when judging satisfactory quality, as with goods, a requirement that all statements be taken into account is not a practical option. Such a specific requirement would lose the necessary flexibility that we have under the current provisions. It would draw in statements made in advertising that are not intended to be taken literally. For example, an advertisement might state that a brain training app will turn you into the next Einstein, but a particular concern of the digital content industry, much of which is based on creative content, is that it would draw in statements as to the subjective enjoyment that the consumer would get from the digital content or the artistic merit of that content, which fall outside the meaning of “quality” that is understood in the Bill.
Secondly, there is a risk around narrowing the interpretation of “relevant circumstances”. The more circumstances that are specified as included, the greater the risk that the concept will be narrowly construed. As such, the Government consider that the Bill already provides the appropriate balance and flexibility in determining whether digital content is satisfactory. However, we can address the noble Lord’s point about providing clarity to consumers that statements about the outcome of digital content and goods are relevant factors in an assessment of “satisfactory quality”. This point will be set out in the guidance we will provide when implementing the Bill.
On Amendment 35, I do not dispute that it is important that consumers are protected if digital content is not fit for an advertised purpose. As we have discussed, the Bill provides this protection in Clause 34. The standard of satisfactory quality can include digital content being fit for its usual purpose and takes into account public statements made not only by the trader, but also by the producer or any representative of the trader or the producer. Clause 35 addresses a slightly different situation. Whereas Clause 34 refers to the purposes for which digital content of that kind is usually supplied, the purpose of Clause 35 is to ensure that consumers are protected when they rely on the trader’s judgment. If consumers make known to a trader that they intend to use the digital content for a particular purpose, and if it is sold to them on that basis, the clause clarifies that the digital content should indeed be fit for that particular purpose.
Let us take an example. A consumer may want to purchase an app that tells them whether or not their device is level, for the purpose of building a home extension. The consumer emails a trader to ask if the
app can be used as a spirit level for building the extension and receives a reply stating that it would be suitable. So the trader has been made aware of the customer’s intentions for the app and has sold it on that basis. The consumer should be able to rely on the fact that the spirit level app will be accurate enough for their needs in constructing the house extension. Clause 35 protects the consumer even if the intended use is not the usual purpose for the digital content. Public claims about the digital content may not be relevant here. This clause is all about situations where the consumer is seeking the advice of the trader for less usual purposes, which may not be public. Indeed, this amendment may cut across the consumer protection that Clause 35 provides. Clause 34 already covers claims as to the quality or usual purpose of the digital content. I hope, therefore, that the noble Lord will be prepared to withdraw the amendment.