Consumer Rights Bill

Debate between Lord Haskel and Lord Knight of Weymouth

Monday 20th October 2014 Grand Committee

[Lord Haskel (Lab)]

My Lords, as my noble friend said, Clause 36 deals with digital content and the consumer’s right for it to be as described. This is important because people may not be able to properly check digital content before buying a complete program. Neither can you check whether it matches a trial version. It has to do what it says on the label.

As my noble friend said, digital content does not remain static. It evolves over time and during use. To give consumers the benefit of these improvements and the advantages of new developments as they come along, digital content providers supply updates, as the Minister explained. However, in addition to updates, upgrades are needed to make sure that the digital content works on the latest operating system and hardware.

The Explanatory Notes say that the Bill goes partly towards recognising this, in that it allows for updates that enhance features or add new features. However, the Bill is not clear. It insists that the digital content continues to match the original product. It has to remain as initially described for the duration of any contract. People in the industry, including my noble friend Lord Sugar, who has many years of experience in the software industry, consider that this could hold back progress in upgrades because the obligation of having to match the original product description could make some new features difficult or impossible to install.

This amendment therefore suggests a more practical approach while still maintaining the rights of the consumer. The amendment allows digital content to be modified if it is of general benefit to the consumer or if it improves the functionality of the software, regardless of whether the digital content continues to meet the original description. To make this absolutely clear, the original terms and conditions must disclose the fact that necessary changes may be made.

The Minister said that she was determined to provide clarity. This is what the amendment does, and achieves it by adding an exemption to Clause 40 so that subsection (1)(c) does not apply where modifications are made to digital content if such modifications are of benefit to the consumers, if they remedy issues, eliminate risk or generally improve the functionality of the digital content—provided that the fact that necessary changes may be made is disclosed clearly in the terms and conditions of the original contract. For example, the amendment will make it perfectly clear that if a consumer purchases Microsoft Office 365 they are not buying a static product and need not purchase a new version each time Microsoft issues an update or improvement. The programme will be refreshed and its features updated automatically as the consumer continues to use the software and had been informed of this at the time of the purchase.

The amendment will provide the clarity that the Government seek, less room for dispute, and continuing benefits for the consumer. I beg to move.

[Lord Knight of Weymouth]

My Lords, I have considerable sympathy with my noble friends’ amendment. However, I should like to return to the issue of the iPad of my noble friend Lady King, which she described as “stuffed”, following the iOS upgrade. I am sure that Apple would argue that the modifications embedded in the upgrade are of benefit to consumers, remedy issues or security risks, and improve the functionality of the iPad. Whatever the reason—it may be an old iPad that cannot handle the iOS, or it may be user or Apple error; I do not know the circumstance of her iPad being “stuffed”—the point that I am trying to make, certainly when others upgrade their iPads with the new iOS, is that if they have an old version of the device they would be struggling. We know that plenty of software upgrades depend, to some extent, on whether your hardware can cope with all the extra features that Apple in particular include. I wonder whether my noble friend’s amendment can deal with such a scenario in which benefit may apply to most but not necessarily all consumers. The amendment may be better than what is in the Bill, and it may be that I am just pointing out the complexities of this area, but I should be interested in his and any other responses to that point.