The European Commission has published the findings of the Digital Fairness Fitness Check, which assessed if current EU consumer protection laws are fit for purpose to ensure a high level of protection in the digital environment. The Fitness Check covered three core Directives: the Unfair Commercial Practices Directive, the Consumer Rights Directive, and the Unfair Contract Terms Directive. The Commission says that these rules remain both relevant and necessary to ensure a high level of consumer protection and effective functioning of the Digital Single Market. However, the review also shows that consumers behave differently online than offline. In addition, technological developments and increased tracking of online behaviour enable businesses to more effectively persuade consumers online. The review highlights the need for rules that are better adapted to the specific harmful practices and challenges that consumers face online.
Key findings
The three Directives have provided a degree of regulatory certainty and consumer trust to support the development of a diverse digital market, but consumers do not always feel fully in control of their online experience due to practices such as:
- dark patterns in online interfaces that can unfairly influence their decisions, for example, by putting unnecessary pressure on consumers through false urgency claims;
- addictive design of digital services that pushes consumers to keep using the service or spending more money, such as gambling-like features in video games;
- personalised targeting that takes advantage of consumers’ vulnerabilities, such as showing targeted advertising that exploits personal problems, financial challenges or negative mental states;
- difficulties with managing digital subscriptions, for example, when companies make it excessively hard to unsubscribe; and
- problematic commercial practices of social media influencers.
Some of these practices may already go against existing EU consumer law and other EU law, for example, the Digital Services Act and the Audiovisual Media Services Directive.
The Commission also says that the effectiveness of EU consumer protection is undermined by insufficient enforcement , legal uncertainty, the increasing risk of regulatory fragmentation across member states’ national approaches, and the lack of incentives for businesses to aim for the highest standard of protection.
The European Commission will address the most harmful practices such as dark patterns. Increased legal certainty could prevent regulatory fragmentation and promote fair growth. It says that there is scope for simplifying existing rules, without compromising the level of protection.
