If the new Consumer Rights Act introduced last year sees digital content – and the legal provisions that accompany it – as an entity in its own right, how should furniture retailers treat complaints and returns arising from furniture that pairs digital technology with an item of furniture? James Courthold, an ombudsman within The Furniture Ombudsman's Dispute Resolution Team, explains …
Digital content includes software, music, films, e-books, games and apps, subscription services and system software for a tangible item – for example, an oven or washing machine.
A consumer must have paid for the supply of digital content with money, token, virtual currency or gift voucher, or have received it free with other goods or services that have been paid for. The provisions will not apply to situations where digital content reaches a consumer as part of another service – for example, providing access to a kitchen plan digitally.
What are consumers’ rights in relation to digital content?
Digital content sold as part of white goods or furniture pieces has to comply with the same terms as any other good – it must be fit for purpose, free from minor defects, as described, safe and durable.
As with goods and service contracts, anything specifically drawn to a consumer’s attention before the contract is made will form part of the contract.
The provisions will apply where digital content is modified by the retailer or a third party. However, this does not preclude the retailer or third party from improving the specification of, or add new features to the digital content, so long as it continues to match the original description.
What remedies are available?
With the fast-paced development of technology, there are already instances where digital content is provided along with goods and services – for example, an appliance sold as part of a kitchen project. Where digital content is provided in such a mixed contract, and the digital content does not conform, the consumer will be able to treat the whole item as being at fault and seek a remedy as if the goods were at fault.
This means that if an oven is supplied with faulty digital content, the consumer may be entitled to reject the product in its entirety.
In general, where only digital content is being supplied, the retailer must repair or replace in the first instance. For the purposes of the act a repair is defined as “making the digital content comply to contract”.
The second tier remedy is a price reduction. Unless the digital content is supplied as part of a mixed contract as referred to above, there is no automatic right to a refund unless certain criteria are met, such as a failure of the right to supply by the retailer.
Further, this will not impact other digital content supplied if unaffected by the breach. An example of this would be where a consumer pays for access to streamed music and the supplier loses the right to stream a particular record label.
How would this apply to the supply of furniture?
In the furniture industry, I consider that these provisions would currently only really apply to mixed contracts where digital content is supplied along with the goods. However, we have seen advancements in the recent past which mean that it is worth being aware of these provisions when deciding which products you wish to offer for sale.
TV beds which include a digital television and sofas with built-in mp3 devices are conceivable, and would fall within these provisions, placing the burden to comply with the retailer.
It is also important to note that if the digital content which is supplied under the contract causes damage to a device or other digital content the consumer will also be entitled to a remedy, even if the digital content was originally free. In such circumstances the retailer must repair the damage or compensate the consumer. Therefore, modifications or updates to the content which cause damage to the device may entitle the consumer to a further remedy.
Given the currently limited application of this element of the legislation to the furniture industry, it is arguably even more important that retailers understand their obligations in relation to any digital content which they supply currently or which is within their future contemplation.
