European Gaming Lawyer magazine Spring 2016 | Page 10

software include (1) the right to a repair or replacement, (2) the right to a price reduction, or (3) the right to a refund. The quality rights and corresponding remedies cannot be excluded and so all B2C suppliers of digital content in the UK must ensure that their consumer contracts and download processes are reviewed for compliance. In addition to confirming consumer rights in respect of digital content, CRA replaces and supplements existing UK rules concerning unfair contract terms in consumer contracts. Previously the legislation could be found in two separate pieces of legislation: the Unfair Terms in Consumer Contracts Regulations 1999 and the Unfair Contract Terms CRA 1977, and CRA consolidates this legislation and applies to all terms in contracts between suppliers and consumers whether negotiated or not. A consumer will now be bound only by those contract terms that are fair, except where such terms are ‘core terms’ (such as the subject matter or price of the contract), which are transparent, prominent and bought to the consumer’s attention at the point of sale. With regard to non-core terms, in order to be enforceable they must not cause an imbalance in the parties’ rights and obligations, and definitely not if this is to the detriment of the consumer. Helpfully, CRA provides examples of terms that would be deemed unfair to the consumer and these include any clauses excluding or restricting statutory rights and remedies or liability for death or personal injury through negligence. In addition to these ‘black-listed’ terms, Part 1 of Schedule 2 of CRA (known as the ‘grey list’) details an abundance of clauses that may be deemed unenforceable if they fail the ‘fairness test’. In summary, a clause will be deemed unfair if it: 1) is not in plain and intelligible language (preventing the use of terms such as consequential and indirect loss often favoured by lawyers because consumers are unlikely to understand their implications); and 2) creates a significant imbalance between the parties to the detriment of the consumer. If any clauses (including, for the avoidance of doubt, ‘core terms’ if they are not deemed 10 | European Gaming Lawyer | Spring Issue | 2016 to be sufficiently transparent or prominent) are found to be unfair they may be unenforceable and open the supplier up to potentially unforeseen liabilities. This author can think of a variety of terms frequently used in consumer facing documents by the gambling industry that may be deemed to be unfair under this new regime, including the right of a supplier to unilaterally void a bet in certain circumstances, and the implementation of CRA will have wide implications for all B2C software providers, be they gamblingfocussed or otherwise. Indeed, UK-licensed operators are required by the LCCP to satisfy themselves that their customer terms and conditions are not unfair within the meaning of, and comply with the terms of, the CRA. 3. General Data Protection Regulation (GDPR) As many will know, GDPR is the European regulation that will replace the Data Protection Directive, which was enacted in the laws of member states across the European Union at the end of the last millennium. As a regulation, it will be directly binding on data controllers in all member stat \