Update requirement for digital products

Updates keep a digital product working as it should. It does not matter whether you sell new, imported or second-hand products. According to the law, as a seller, you must ensure that customers get the right updates in time. Even for products you offer for free.

This is what you must do

You must clearly inform customers before or during the purchase where they can find the updates for your product. For example, in the appstore or on your website. Customers are responsible for downloading the latest updates themselves. Explain that the product will only continue to work properly if the customer uses the updates.

How long must you offer updates?

Unfortunately, the new law does not describe how long vendors must provide updates. That means manufacturers, vendors, and customers will have to judge for themselves what is a fair period. Quality and price are taken into account in that estimation. Are you selling an expensive product that will last for many years, such as a smart washing machine? Then the customer should expect longer updates than when buying an online game.

There will undoubtedly be lawsuits related to this law. Then will it become clear how a judge will deal with the question of how long customers can expect updates in certain situations.

Product must work well

Your customers are entitled to a product that works well (in Dutch), whether it is digital or not. It must meet the quality customers can expect and the agreements you make with them, for instance in a (sales) contract. The texts you use in advertisements or on your website also count as a promise. In any case, the customer has a legal guarantee, even if you have not laid down any agreements. With digital products, the 'right to a properly functioning product' means that you as a seller must offer updates to the customer.

Proper software and updates

"For non-digital products, it is often easy to determine whether it is 'working properly': a toaster either works ... or it does not. Then you are only dealing with the device itself," says Bram de Vos, a lawyer at the firm ICTRecht. "But the proper and safe operation of a smart TV, for example, depends on the right software, new updates, and a working internet connection. That is why it is so important to point this out to customers."

Manufacturer's warranty

In addition to the legal warranty, a seller can provide an additional warranty. For example, that the security camera you sell will have updates for 5 years. In practice, these warranty agreements usually go through the manufacturer, not the seller. So in such a case, you can offer customers manufacturer's warranty, with the manufacturer responsible for offering the updates.

Refrigerator hacked?

Suppose you sell a smart fridge and it breaks down sooner than expected. Or hackers have broken into the device, causing it to stop working. Then the Consumer and Market Authority (ACM) may launch an investigation. Does that investigation make it clear that a lack of updates is the cause? Or did you give the customer too little or incorrect information about updates? Then you could be fined.

Agreements with manufacturer

Are you only the seller and not the manufacturer? Then make clear agreements with the business that makes the product. Put in a contract that the manufacturer provides the right software and shares updates for a certain period of time. Agree how to deal with the risks that arise if the manufacturer fails to provide updates (long enough). Establish who is liable if your customer has complaints or damages.

Many manufacturers think about updates when making a product. "Often the manufacturer arranges that updates to the product's software are automatically installed," says De Vos. "Or the customer gets an alert on the screen as soon as there is a new update."

Using offline, still updating

Keeping up with updates becomes trickier with devices that are not connected to the internet all the time. For example, a customer may be fine using an e-reader 'offline' after downloading books on it. Still, the e-reader may malfunction or become unsafe if the customer never installs updates.

"Even in those cases, tell your customer that updates ensure that the product works properly and safely," advises De Vos. "For example, put text on your website about the importance of updates and tell customers where to find them and how to install them."