To understand the EU consumer protection landscape in 2025, we have to take a step back. On 3 October 2024, the European Commission graced us with yet another report into how it thinks tech companies are ruining everything with its Fitness Check on Consumer Law of Digital Fairness. This deep dive into whether EU consumer law can handle the digital age builds on the New Consumer Agenda of 2020 and takes aim at three key Directives:
The EC’s grand finale? A report outlining how dark patterns, addictive designs, and personalisation are apparently eroding consumer rights and digital harmony. These findings are now the building blocks for the upcoming Digital Fairness Act, which promises to “enhance consumer rights” and sprinkle a little more “fairness” across the EU’s already regulation-heavy digital playground. Because obviously, what tech businesses (and their lawyers) really need is another layer of rules to keep things exciting.
Of course though, consumer protection is important and it's a fair question as to whether the current framework can deal with the current digital environment, it's just that it's been a long year with a lot of legislation in the digital space and we don't see next year as being any different.
The findings of the Fitness Check
The Fitness Check report concludes that while existing EU consumer law is still relevant, new rules are needed to tackle harmful online practices. Despite recent regulations like the Digital Services Act (DSA) and Digital Markets Act (DMA), the report says many unfair practices arise from a "power imbalance between consumers and traders […] amplified by the increased scale, speed and potency of digital solutions for targeting consumers.” It identifies 11 key issues inadequately covered by current laws, including dark patterns, addictive design, personalised advertising, social media commerce, unfair contract terms, 'dropshipping' (the sale of products without their seller holding those products in stock), AI chatbots, and ticket sales.
In summary, the report included the following findings and recommendations:
Dark patterns and addictive design
The report highlights dark patterns - designs influencing decisions consumers wouldn’t otherwise make - used by 97% of top websites – as disproportionately affecting older consumers and those with less education. While some practices may already be prohibited by the UCPD or CRD, unclear protections and limited case law have rendered the current framework largely ineffective. The report suggests adding explicit bans to the UCPD, such as prohibiting drip pricing or click fatigue, and proposes a new EU principle of “fairness by design.”
Addictive designs such as autoplay, infinite scroll, ephemeral content, or penalties for disengagement, remain largely unregulated with the report identifying particular risks with in-app gambling. While the UCPD and the DSA regulate these issues up to a point, most harms fall outside current rules. Current EU consumer law is therefore not considered as “sufficiently clear or effective in addressing the multifaceted harms resulting from [addictive] interface designs”.
Personalisation
The report identifies potentially unfair business practices related to product and service personalisation, including excessive collection of personal data, lack of transparency, and personalised pricing. While personalisation is not considered unfair or illegal per se, it is subject to limits under the GDPR, ePrivacy Directive, DSA, DMA and other EU laws. Concerns arise when traders fail to be sufficiently transparent or exploit consumers’ vulnerabilities through personalisation. The report proposes banning some personalised pricing practices and granting consumers opt-outs for non-personalised offers.
Social media commerce and influencer marketing
The report explores potential issues in social media commerce and influencer marketing, focussing on practices such as undisclosed commercial content (e.g. covert influencer marketing) and aggressive advertising of harmful products such as of unhealthy foods to children. Although some EU Member States have introduced measures, particularly targeting insufficiently transparent influencer marketing, these remain fragmented. Misleading marketing claims could fall under the UCPD, but the report finds that current rules would still “be insufficiently precise [to address] all concerns raised by social media commerce”.
Unfair contract terms
The report identifies common problematic terms like unilateral contract terminations or changes, content removal, limitation of liability and restrictive choice of law, which are widespread, and exacerbated by lengthy, complex terms and conditions consumers rarely read. While the UCTD provides a framework to test terms for fairness and a non-exhaustive list of potentially unfair terms, it is criticised for broad scope and weak penalties as seen in Facebook’s EUR 30,000 fine for using more than 400 unfair terms in 2019. Lengthy and slow redress procedures exacerbate the issue. Therefore, some stakeholders have suggested solutions such as extended blacklists, stricter transparency requirements, and/or higher penalties to address these concerns.
Other issues: 'dropshipping', AI chatbots, and ticket sales
The report also considers several other “digital commercial phenomena”, including dropshipping, AI chatbots, and ticket sales. The risks resulting from dropshipping are that consumers remain unaware that their seller is merely an intermediary. In terms of AI chatbots, the report suggests their use in customer service could undermine transparency and limit the consumer’s ability to resolve issues effectively. In relation to ticket sales, the report notes the impact of dynamic pricing, which has led to extreme price surges, further aggravated by scalping bots that purchase tickets in bulk for resale at inflated prices.
What’s to come in 2025?
The report emphasises that it does not propose any new regulatory interventions and explicitly refrains from “prejudging any future prioritisation of issues and the content or format of [potential] follow-up actions” but it's likely to form the basis of a new Digital Fairness Act.
Ursula von der Leyen, President of the new European Commission, in her Mission Letter to Michael McGrath, the Commissioner for Democracy, Justice, and the Rule of Law, tasked him with “develop[ing] a Digital Fairness Act to tackle unethical techniques and commercial practices related to dark patterns, marketing by social media influencers, the addictive design of digital products and online profiling, especially when consumer vulnerabilities are exploited for commercial purposes”, essentially covering the same issues raised in the report. During his confirmation hearing, McGarth expressed his interest in developing such regulation. Given the report criticises the fragmentation of national consumer protection laws in EU Member States, the Digital Fairness Act could swoop in to 'fix' the patchwork of national rules by harmonising everything into a shiny, unified framework - just like the DSA, DMA, and AI Act, adding yet another layer of regulation.
Interestingly, the UK is also considering some of these issues with studies into drip pricing, dynamic pricing and secondary ticketing ongoing. It has also passed the Digital Markets Competition and Consumers Act which, among other things, will reform the unfair commercial practices regime including by introducing new rules on subscription contract renewals and fake online reviews. On 8 November 2024, the UK's Department of Business and Trade published a study into potentially harmful online choice architecture, with a focus on online defaults and while the study made a number of recommendations, it stopped short of recommending legislation to ban defaults as it concluded in the majority of cases they are not used for harmful practices. It looks as though the EC's Digital Fairness Act may move the UK and EU consumer protection regimes further apart, either by introducing similar but not identical provisions, or by legislating in areas not covered by UK law.
Having said that, the details around the Digital Fairness Act remain unclear. If the new EC prioritises this initiative, we can expect more information in its 2025 work program, likely to be published in February.
