Conformity of contract in terms of digital content and services in consumer law

Digital content and services, ranging from software and e-books to digital streaming services and computer games, are commonly the subject of consumer transactions. One of the problems that may be encountered in contract law within these transactions is the conformity, which means the obligation to fulfil performance in all matters related to the subject matter of performance. Digital content and services are normatively considered goods in the Turkish Consumer Protection Act No. 6502 (TCPA Art. 3/h). Although there is no direct counterpart in the consumer protection regulations in Turkish Law, it is possible to equate conformity with the concept of defect-free performance. In other words, conformity of digital content and services is subject to the provisions regarding defective goods in the TCPA. However, these provisions are insufficient to safeguard consumers' interests in contracts involving sophisticated digital content and services. For example, the objective requirements regulated in the Act are quite abstract for digital content and services. Furthermore, various problems may arise in applying the defective goods provisions to digital content and services provided by continuous supply over a period of time, such as cloud computing services. Even though the concept of the conformity is included in the Directive 99/44, the concept of defect is used in the TCPA, leading to the transfer of the discussions regarding the scope of defect from the Turkish Code of Obligations to the TCPA. There is a lack of appropriate case law to overcome these issues, and it is unlikely to expect such judicial opinion to be formed in consumer disputes, as it is often not possible to appeal due to monetary limitations. Therefore, a need has risen for reform in Turkish law addressing these issues. In the reform to be introduced to Turkish law, EU and German law regulations, which are likely to become a world standard, can serve as a model. The EU 2019/770 Digital Content Directive and the German Civil Code (BGB) § 327 et seq. provisions adopt an approach that prioritises consumer protection in the digital world, taking into account the sophisticated features of digital content and services. However, these provisions in certain substantial aspects, are open to criticism. Moreover, in terms of their regulatory approach, they lack the essential qualities of being concise and easily comprehensible. In this respect, this dissertation concentrates on how a legal solution should be devised in Turkish law by analysing EU and German law regulations pertaining to digital content and services in terms of conformity.