What does the Consumer Rights Act 2015 mean for providers of digital sports content?

This article provides a summary of the key provisions of the Consumer Rights Act 2015 (the “CRA”) that sports content providers should consider when supplying digital content to consumers. The CRA came into force in the UK on 1 October 2015.

Why is digital content being regulated under the CRA?

The digital content market has grown exponentially in recent years. However, unlike other goods and services, digital content is intangible and, because of advances in technology, requires regular updates. Further, digital content cannot be “returned” if it is faulty and, as it can be easily copied, content providers are reluctant to give refunds.

Because of these particularities, standard consumer rights do not provide adequate protections and remedies to consumers in respect of digital content. The CRA therefore introduced provisions that specifically govern the supply of digital content to consumers.

What type of sports content does the CRA apply to?

“Digital content” is defined as “data which are produced and supplied in digital form”.¹ The definition is purposely very wide and will encompass any digital content that is downloaded, streamed or otherwise accessed from the internet.²

Only paid content is covered

The CRA only applies to digital content that is paid for or digital content that is free but comes with paid-for goods or services or paid-for digital content.³

For example, where a consumer pays for an online streaming service and is supplied with a free download of the online streaming service platform the digital content provisions in the CRA would also apply to the platform download. Payment can take the form of a one-off sum or an ongoing subscription.

Standalone free digital content is therefore not subject to the CRA unless the free content causes damage to a consumer’s device or to other digital content (e.g. an app downloaded by a consumer puts a virus onto their smartphone or tablet) and the damage would have been avoided if the digital content provider used reasonable care and skill.⁴

This provides consumers with redress without having to show that the digital content provider of the free content intended to cause damage or that they were negligent. Demonstrating that the provider did not use reasonable care and skill is an easier standard to meet. In such cases, consumers are entitled to require the digital content provider to repair the damage caused (often a more practical remedy than paying damages) or provide adequate compensation.

Examples of the types of digital sports content covered

• Smartphone and tablet applications that provide sports-related statistics, data, news and media. This would include apps provided by clubs, teams or competition organisers as well as apps provided by sports news providers, sports channels and betting companies.

A number of English Premier League football clubs have recently announced digital engagement partnerships with technology providers (such as Manchester United with HCL and Chelsea with WIPRO) to create “digital experiences” for fans.⁵ Much of this digital content is also likely to fall within the CRA’s definition if it is paid-for.

• Digital platforms that consumers are required to download in order to stream or download paid-for sports content. This would include on-demand players and online streaming platforms such as SkyGo, paid for channels on YouTube or the NOW TV app. Freely available content on streaming platforms such as YouTube would not be covered unless the consumer has to pay to access the streaming platform.
• Digital media, either downloaded or streamed. This would include on-demand sports programming (such as highlight shows, game replays and news coverage) as well as the supply of live content.

However, programming that is provided for free, for example via BBC iPlayer or on BBC Sport would not be covered.

• Sports publications provided in a digital format, for example books or magazines provided in the form of a download or online journals and subscribed-for editorial content accessed online.
• Sports-related games provided online, over social media or through an app.

Territorial application

The CRA applies to digital content providers making content available to consumers resident in the UK, regardless of whether they are established in or outside the UK. Where a digital content provider is based abroad but pursues or directs its supply to the UK, the rights provided by the CRA apply even if the contract for the supply of digital content is governed by another country’s law.⁶

Applies to content made available to consumers

The CRA applies to digital content made available to consumers but does not apply to business to business contracts. For example, where a Premier League football club engages a technology provider to create a digital experience for fans and the digital content is faulty, the Premier League club could not rely on the CRA. However, the fans, who are the ultimate consumers of the product, would be able to enforce their rights under the CRA.