Rapid advances in the development of artificial intelligence and algorithms make the protection of people in the digital space a highly relevant concern for European policy. With its initiative on "Digital Fairness", the EU Commission wants to check whether existing EU consumer law ensures that the same level of fairness is achieved online and offline. As shown in a new AK EUROPA position paper, there is indeed still a great need for action to make this maxim a reality.
Despite all the possibilities that artificial intelligence and modern technologies open up in terms of increased efficiency and innovation, the excessive storage, processing and use of data also threatens the self-determination and privacy of citizens and consumers. “Take it or leave it”, is often the motto of online providers. Against this background, it is particularly important to strengthen the position of consumers in the digital world. Surveillance and control not only undermine data protection, but also pose a threat to free and democratic societies. As part of its consumer agenda, the EU Commission is currently carrying out a fitness check (evaluation) on EU consumer law.The aim is to evaluate whether existing measures are sufficient to ensure fairness and transparency for consumers. The public consultation was closed at the end of February 2023, the final version of the fitness check has been announced for the second quarter of 2024.
Demand for "digital sovereignty" and "digital human dignity”
The digital age increases the vulnerability of the individual: people and their behaviour can be tracked online - down to the most intimate details. Even careful users of online services have no knowledge of the processes behind digital interfaces and cannot defend themselves against them (or only with unjustifiable effort). Knowing a person's habits, characteristics and mental state - combined with neurological insights and AI-based predictions - companies can guide and manipulate a person's decisions. Traditional marketing techniques also have potential for manipulation, but the digital transformation threatens people's self-determination to an unprecedented extent. Another aspect is that commercial and state action are becoming increasingly intertwined, creating new dependencies. Examples of this can be found in the combination of classic health data and smart fitness wristbands or in mobility data generated by smart cars, in which both public authorities and private insurance companies have an interest. As a guideline for the necessary regulation, the AK EUROPA Position paper on Digital Fairness therefore calls for the guarantee of “digital sovereignty” and “digital human dignity”.
Balancing the EU digital package through digital consumer rights
The EU digital package consists, among other, of the Digital Services Act (DSA), the Digital Markets Act (DMA), the Artificial Intelligence Regulation (AI Act), the Data Act, the Data Governance Act and the European Health Data Space (EHDS). The current digital package is too one-sidedly focused on innovation and competition. It is therefore essential to adequately supplement and thus balance it with digital consumer rights.
AK's important concerns here are:
- Offline right instead of online compulsion: The right to use core functions of a product – as far as technically possible – offline (if required) should be anchored here.
- Add consumer rights to the Data Act. This includes, for example, action against unfair contract terms for IoT (Internet of Things) devices such as smart cars or household appliances.
- Comprehensive liability for AI: What is needed is a facilitated liability regulation. There must be no time delay in regulating AI-liability.
- Protection against personalised and manipulative advertising: “Don’t Track“ must apply universally, regardless of age, and must be able to be explained in the simplest possible way.
- Regulate influencers: Highly visible labelling of online advertising and measures for the protection of children and young people are required.
- Biometrics – The human body must not be a key for consumer transactions: What is needed here is a ban on the trade in biometric data and rights of choice for consumers.
- Electronic identity checks only if absolutely necessary: The creation of ID copies and possible lifelong tracking through an e-ID for all EU citizens must be effectively restricted.
AK EUROPA Position Paper: Digital Fairness
AK EUROPA: Trustworthy AI? Not without consumer protection!
AK EUROPA Position Paper: Data Act – Significantly more consumer protection for the Internet of Things
AK EUROPA: European Health Data Space: Data protection gaps and additional burden on the health system or opportunity for research and innovation?
AK EUROPA: Digital Services Act: Benefits for consumers, but overall remaining behind expectations