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About legal aspects regarding phone flashing.

Does flashing your device (e.g. an Android phone) and replacing its operating system void your statutory warranty, if you are a consumer located in the European Union?

In general terms, no. The statutory warranty does not become void by replacing the OS on an Android phone. Just the fact that you modified or changed the software of your device is not a sufficient reason to void your statutory warranty. Vendors should provide a warranty for a period of 2 years, as long as you have bought the device as a consumer in the European Union1.

The Sale of Goods Directive (EU) 2019/771, maintains the position the FSFE reported in 2012 2. In case your Android device stops working in 2 years, even with the OS installed by you, the seller has to fix or replace it. The new law applies to any goods with digital content. Android devices (e.g. smartphones and smartwatches) are examples of such goods.

In case the vendor refuses to provide a warranty and you need to go to court, the law protects you by imposing on the vendor the duty to prove that you had caused the defect. If your device becomes defective in the first year of use, it is presumed that the defect was there before the purchase 3. However, if your device becomes defective after the first year, but before 2 years run out, you are still covered by the warranty. The difference is only that if the defect arises after the first year, the vendor can claim that the defect was caused by some action that was triggered by non-normal use of the device.

Unless the seller can prove that modifying the software, flashing your device with some other OS or firmware was the cause for the defect, you are still covered by the warranty. A good test to see if it is the software's fault is to flash it back with stock firmware/OS and see if the problem persists. If it does, it is not a software-caused problem. If it is not possible to revert it to stock software any more, it is also not a software-caused defect.

Many manufacturers of consumer devices write into their warranties a paragraph that by changing the software or flashing your device, you void the warranty. This refers to a “voluntary warranty”, one which the seller or manufacturer can, but does not need to, offer as an additional service to the consumer. This is unrelated to the statutory warranty (also called commercial guarantee by law)4. Nevertheless, if the manufacturer or anyone else offers a voluntary warranty through the vendor, they should be bound to it as well.

Regarding driver updates, device vendors must keep the consumer informed of and supplied with updates, including security updates, that are necessary to keep devices in conformity during the warranty period, even if a different OS is installed. The Digital Content Directive (EU) 2019/7705 imposes the duty on the vendor to provide such updates, unless the trader proves that the consumer's digital environment6 is not compatible with the technical requirements of the updates. The vendor should, however, inform the consumer about such requirements in a clear and comprehensible manner before the conclusion of the contract.

These provisions do not apply to second-hand devices. However, in case the vendor agrees to a shorter liability or limitation period, she/he must be bound to it as well.

In case the vendor refuses your right to repair or replace the device, you can sue her/him in a civil litigation and report the incident to the national consumer protection authority. Consumer associations also can help inform you if there is an need for hiring a lawyer for this kind of process in your country.

Footnotes

  1. A "consumer" is a natural person who has acquired the device for private and non-commercial purposes.
  2. The Consumer Sales and Guarantees Directive (1999/44/EC) has been repealed by the Sale of Goods Directive (EU) 2019/771 with effect from 1 January 2022.
  3. Art. 11 of Directive (EU) 2019/771.
  4. Art. 2(12) of Directive (EU) 2019/771.
  5. Art. 12(4) of Directive (EU) 2019/770.
  6. Art. 2 (9) of Directive (EU) 2019/770 defines ‘digital environment’ as means hardware, software and any network connection used by the consumer.

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