Unfair Commercial Contracts and Online Content Distribution : Insights into Problems, Regulation and Potential of European Harmonization

Commercial online content (e. g. music, video, e-books), distribution is growing in economic significance and consuming online content plays a remarkable role in the everyday life of many. The characteristics of online content distribution markets appear to underline concerns about unfair trading. The European Commission has expressed willingness to establish European business-to-business unfair trading rules. While the business fields that the Commission intends as subjects of possibly rather generally applicable rules remain open, and while inclusion of digital content products in the scope of applicability is unclear, the initiative serves as a useful basis for discussion of justifications for and challenges to addressing business-to-business unfair trading matters in online content distribution by means of EU legislation. This article highlights issues where discussion and particular care in possible harmonization are advisable. These matters include aspects of the interface between potential European rules on the one hand and national contractual and procedural law and enforcement systems on the other