Reflecţii asupra contractului digital
Reflections on the digital contract

Summary/Abstract: This study is about the transfer of digital content. Thanks to the example that Directive (EU) 2019/7702 provides in such an unexplored area as the provision of digital content and services, it dominates our topic. However, we do not propose a textual analysis of the Directive or of the rules transposing it into national law. The issue of the provision of digital content and services, which we refer to as digital content transfer, goes far beyond the scope of the normative act, because, as we shall see, the digital phenomenon has been of concern to the European legislator long before its adoption. In a first part of the study, we will place the digital phenomenon in a European context; of course, only from the perspective of European contract law (we are not concerned with its economic or technical side). The focus will therefore be on the digital contract. The second part will be a “legal framing” of the digital contract, this time through the eyes of national law [involving the Law transposing Directive (EU) 2019/770 – GEO No 141/2021]. We will explain the legal side of digital content, digital services and, by extension, the data underlying online transactions. Indeed, data are assets that are highly present on the market, but are completely alien to private law. We will note that the way subjective rights attach to data is currently the subject of active doctrinal debate. Finally, the third part of the study will include a classification of digital contracts, with practical application in GEO 141/2021. Essentially, what we are seeking is for the practitioner to understand how to deal with the provision of digital content and services, but without claiming to unravel the mystery of the digital phenomenon.

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