Cloud Computing Contracts as Contracts for the Supply of Digital Content: Classification and Information Duty
Vol.13,No.2(2019)
Cloud computing contracts are among the most frequently concluded contracts over the Internet. Until now, however, they have been considered mainly from the perspective of data protection and intellectual property laws. Although these analyses provide valuable insights, they do not fully cover an important area, i.e. consumer protection. The article focuses on the latter issue, taking Consumer Rights Directive as a reference point. The Directive is one of the latest acts concerning consumer protection in the European Union. It also introduces a new type of agreement that should cover cloud computing contracts. In addition, characteristically for European law, it provides for an information duty as a means of consumer protection. The article examines these two aspects by seeking an answer to the following questions: (1) do cloud computing contracts classify as contracts for the supply of digital content? And (2) do the provisions on information duty suit well cloud computing contracts? The analysis includes the results of empirical studies of these contracts. In the conclusion, the article states that the new type of contract may not significantly improve consumer protection, mainly due to the ambiguity resulting from recital 19 of the Directive. On the other hand, consumers may benefit from the provisions on information duty, though it does not directly address the main problems connected with cloud computing contracts.
The article is divided into four parts. The first provides an introduction to the topic. The second discusses cloud computing contracts as contracts for the supply of digital content. The third analyses the provisions on information duty from the point of view of the contracts under consideration. Finally, the fourth summarises previous comments.
Cloud Computing Contracts; Consumer Protection; Digital Content; Information Duty
p. 133–160
Krzysztof Żok
Adam Mickiewicz University in Poznań
Department: Faculty of Law and Administration
Rank: Adjunct
[1] Bradshaw, D. et al. (2014) Uptake of Cloud in Europe Follow-up of IDC Study on Quantitative estimates of the demand for Cloud Computing in Europe and the likely barriers to take-up. [online] Luxembourg: Publications Office of the European Union. Available from: https://publications.europa.eu/en/publication-detail/-/publication/cfe5a91c-85cf-4c64-99e9-1b5900c8529a/language-en/format-PDF/source-search [Accessed 14 March 2019].
[2] Bradshaw, S., Millard, Ch. and Walden, I. (2011) Contracts for Clouds: Comparison and Analysis of the Terms and Conditions of Cloud Computing Services. International Journal of Law and Information Technology, 19 (3). https://doi.org/10.1093/ijlit/ear005
[3] Bezáková D. (2013) The Consumer Rights Directive and its Implications for Consumer Protection Regarding Intangible Digital Content. Masaryk University Journal of Law and Technology, 7 (2).
[4] Calloway, T. J. (2011) Cloud Computing, Clickwrap Agreements, and Limitation on Liability Clauses: A Perfect Storm? Duke Law and Technology Review, 11 (1).
[5] Carpenter, R. H. Jr. (2010) Walking from Cloud to Cloud: The Portability Issue in Cloud Computing. Washington Journal of Law, Technology & Arts, 6 (1).
[6] Celestine, C. M. (2013) “Cloudy” Skies, Bright Futures? In Defense of a Private Regulatory Scheme for Policing Cloud Computing. Journal of Law, Technology and Policy, 1.
[7] Commission Decision of 18 June 2013 on setting up the Commission expert group on cloud computing contracts. Official Journal of the European Union (2013/C-174/6) 20 June. Available from: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:174:0006:0008:EN:PDF [Accessed 14 March 2019].
[8] Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007. Official Journal of the European Communities (2012/C-326/1). Available from: https://eur-lex.europa.eu/eli/treaty/tfeu_2012/oj [Accessed 20 July 2019].
[9] Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises. Official Journal of the European Communities (1985/L-371/31). Available from: https://eur-lex.europa.eu/eli/dir/1985/577/oj [Accessed 14 July 2019].
[10] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. Official Journal of the European Communities (1993/L-95/29). Available from: http://data.europa.eu/eli/dir/1993/13/oj [Accessed 14 March 2019].
[11] Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council. Official Journal of the European Union (2011/L-304/64) 22 November. Available from: http://data.europa.eu/eli/dir/2011/83/oj [Accessed 14 March 2019].
[12] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Official Journal of the European Communities (1995/L-281/31). Available from: http://data.europa.eu/eli/dir/1995/46/oj [Accessed 14 March 2019].
[13] Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts. Official Journal of the European Communities (1997/L-144/19) 20 May. Available from: https://eur-lex.europa.eu/eli/dir/1997/7/oj [Accessed 14 July 2019].
[14] Directorate-General for Justice. (2014) DG Justice Guidance Document concerning Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council. [online] Available from: https://ec.europa.eu/info/sites/info/files/crd_guidance_en_0.pdf [Accessed 16 July 2019].
[15] European Commission. (2008) Proposal for a Directive of the European Parliament and of the Council on consumer rights. (COM(2008) 614 final). [online] Available from: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2008:0614:FIN [Accessed 20 July 2019].
[16] European Commission. (2011) Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law. (COM(2011) 635 final). [online] Available from: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:52011PC0635 [Accessed 14 March 2019].
[17] European Commission. (2012) Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions 'Unleashing the Potential of Cloud Computing in Europe'. (COM(2012) 529 final). [online] Available from: http://ec.europa.eu/transparency/regdoc/rep/1/2012/EN/1-2012-529-EN-F1-1.Pdf [Accessed 14 March 2019].
[18] European Commission. (2015) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘A Digital Single Market Strategy for Europe’ (COM(2015) 192 final). [online] Available from: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52015DC0192&from=EN [Accessed 14 March 2019].
[19] European Parliament. (2011) Report on the proposal for a directive of the European Parliament and of the Council on consumer rights. [online] Available from: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2011-0038+0+DOC+PDF+V0//EN [Accessed 20 July 2019].
[20] European Parliament. (2011) Debates: Wednesday, 23 March 2011 – Brussels. [online] Brussels: European Parliament. Available from: http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20110323&secondRef=ITEM-020&language=EN&ring=A7- 2011-0038 [Accessed 15 July 2019].
[21] European Parliament. (2011) Debates: Thursday, 23 June 2011 – Brussels. [online] Brussels: European Parliament. Available from: http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20110623&secondRef=ITEM-014&language=EN&ring=A7-2011-0038#4-223-000 [Accessed 15 July 2019].
[22] Foster, T. N. (2013) Navigating Through the Fog of Cloud Computing Contracts. John Marshall Journal of Information Technology and Privacy Law, 30.
[23] Hon, W. K., Millard, Ch. and Walden, I. (2012) Negotiating Cloud Contracts: Looking at Clouds from both Sides Now. Stanford Technology Law Review, 16 (1). https://doi.org/10.2139/ssrn.2055199
[24] Lu, Th. Y. (2018) Understanding Streaming and Copyright: A Comparison of the United States and European Regimes. Journal of Business and Technology Law, 13 (2).
[25] Markou, Ch. (2017) Directive 2011/83/EU on Consumer Rights. In: Arno R. Lodder and Andrew D. Murray (eds.). EU Regulation on E-Commerce. Cheltenham-Northampton: Edward Elgar.
[26] McCorry, D. (2014) With Cloud Technology, Who Owns Your Data?. The Federal Courts Law Review, 8 (1).
[27] McGillivray, K. (2014) Conflicts in the Cloud: Contracts and Compliance with Data Protection Law in the EU. Tulane Journal of Technology and Intellectual Property, 17.
[28] Mell, P. and Grance, T. (2011) The NIST Definition of Cloud Computing. Recommendations of the National Institute of Standards and Technology. Gaithersburg: National Institute of Standards and Technology. [online] Available from: https://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublication800-145.pdf [Accessed 14 March 2019]. https://doi.org/10.6028/NIST.SP.800-145
[29] Oxford University Press. (2019) Oxford Dictionaries. [online] Oxford University Press. Available from: https://en.oxforddictionaries.com/definition/medium [Accessed 14 March 2019].
[30] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). Official Journal of the European Union (2016/L-119/1). Available from: https://eur-lex.europa.eu/eli/reg/2016/679/oj [Accessed 14 March 2019].
[31] Soma, J. et al. (2011) Chasing the Clouds without Getting Drenched. A Call for Fair Practices in Cloud Computing Services. Journal of Technology Law and Policy, 16.
[32] Weatherill, S. (2012) The Consumer Rights Directive: How and Why a Quest for “Coherence” Has (Largely) Failed. Common Market Law Review, 4.
[33] Weatherill, S. (2013) EU Consumer Law and Policy. 2nd ed. Cheltenham-Northampton: Edward Elgar. https://doi.org/10.4337/9780857936981
[34] Wikipedia. (2019) Software. [online] Available from: https://en.wikipedia.org/wiki/Software [Accessed 21 July 2019].
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