At EU level, three directives are of central importance for consumer protection: the Unfair Commercial Practices Directive, the Consumer Rights Directive  and the Unfair Contract Terms Directive. The EU Commission has subjected these legal acts to a fitness check in order to determine whether they also ensure a sufficiently high level of protection for consumers in the digital space. The last fitness check of EU consumer and marketing law was carried out in 2017. As part of the current check, the results of which were presented on 3 October 2024, numerous questionable business practices were examined, and it was found that the current legal situation does not provide sufficient protection. AK also comes to this conclusion. The Commissioner-designate for Democracy, Justice and the Rule of Law, Michael McGrath, who will also be responsible for consumer protection, is to present a Digital Fairness Act to address some of the protection gaps.

Problematic practices
In its report on the “Digital Fairness Fitness Check”, the EU Commission analyses numerous problematic practices on the internet. Among those, it addresses so-called dark patterns. These are design psychology tricks that are already prohibited under the Unfair Commercial Practices Directive, but are still used by many online shops due to grey areas and legal loopholes. The report also criticises the addictive design of some digital services, such as loot boxes in video games. AK calls for a general ban on such practices, which should also include the exploitation of the play instinct for promotional purposes. It is welcomed that the EU Commission addresses in the report the difficulties in terminating contracts, which many consumers regularly experience. According to the report, consumers in the EU lose around €8 billion Euros per year due to various harmful online commercial practices. By contrast, at a maximum of €737 million per year, companies’ compliance costs to meet the requirements of European consumer law are moderate.

”Do Not Track” and personalised manipulation
A widespread practice is the close tracking of users. This is done under the pretext of being able to offer suitable content. In fact, it is driven by a whole industry for trading personal data that allows for the targeting of users. Personalised advertising or even personalised pricing are widespread. These practices deliberately exploit the weaknesses of individual consumers in order to maximise profits. Users can use “Do Not Track’” (DNT) to indicate that they do not want to be tracked, but there is no effective means of asserting legal claims. Currently, only minors are explicitly protected from personalised advertising by the Digital Services Act (DSA). The Digital Fairness Act could create a general legal claim to DNT. From the point of view of AK, this announced legislation would also be a good opportunity to ban personalised pricing. In a supermarket, the same product costs the same for everyone, no matter who is standing in front of the shelf, and there is no reason why this should be different online.

Influencers and youth protection
Young people have become a popular target group for advertisers, both online and offline. Especially on social media, marketing campaigns by influencers are ubiquitous. However, in particular adolescents and young adults often find these forms of advertising, which sometimes exploit their weaknesses, difficult to understand. The report notes that some of these practices may already violate existing provisions of the DSA or the EU Audiovisual Media Services Directive. The existing protection and its implementation are obviously insufficient. AK therefore calls for the clear labelling of advertising and an EU monitoring body for influencers to ensure the protection of minors.

The myth of the informed consumer
One of AK's key demands is to abandon the myth of the informed consumer. Particularly in the digital world, consumers are unable to act with sovereignty due to the complexity of products, algorithmic decisions and manipulative practices. As long as legislation is based on the fiction of informed action, this imbalance cannot be redressed.

Further information
EU Commission: Evaluation shows the benefits and limitations of online consumer protection laws
EU Commission: Fitness Check on EU consumer law on digital fairness
AK EUROPA: Forderungsblatt „Digitale Fairness”
AK EUROPA: Position Paper “Digital Fairness”
BEUC: European Commission reveals blind spots in protecting consumers online
EU Commission: Study to support the fitness check of EU consumer law on digital fairness and report on the application of the Modernisation Directive