Where Soft Law is the Only Law: Digital Goods in Comparative Perspective

Abstract

In the rapidly evolving digital economy, the legal qualification and regulation of digital goods remain ambiguous and fragmented. Despite their growing economic and societal relevance, digital goods are often governed not by binding legal norms (hard law), but by non-binding guidelines, private contracts, and platform-specific terms of service - the so-called soft law. This article explores the legal vacuum surrounding digital goods, analysing the challenges posed by the absence of uniform definitions, the reliance on private ordering, and the inconsistent application of existing legal categories across jurisdictions. Through a comparative and interdisciplinary lens, the study examines how current legal systems struggle to keep pace with technological innovation, resulting in legal uncertainty regarding ownership rights, consumer protection, taxation, and the cross-border transfer of digital goods. The paper argues for the development of a coherent national and European Union regulatory framework that transcends soft law approaches and provides clear, enforceable, and future-proof norms for the classification, use, and transfer of digital goods in a globalised environment.