Digital Fairness for Consumers

The report assesses the position of the European consumer in digital markets, and whether EU horizontal consumer law can still efficiently protect consumers in the connected age.

Building on earlier comprehensive research work on digital asymmetry, the researchers pinpoint areas for regulatory intervention and propose changes that should become the foundation for a future Digital Fairness Act at EU level.

The main findings provide evidence of a divide opening up between consumer law and the realities of a digital economy. This rupture is evident in the following areas:

• the vanishing line between the consumer and the citizen;
• privatisation of consumer law through the space given to the AI industry to develop complex designs which are impossible to assess without analysing the multi-layered stacked decision-making processes;
• increasing replacement of consumer protection with abstract fundamental rights rhetoric;
• the restrictive interpretation of unfair practices law, resting on the protection of economic interests and disregarding new types of consumer harm;
• the growing knowledge gap separating providers of complex AI systems from the rest of society, rendering enforcement near-impossible without changes to the burden of proof.

Along with a broad analysis of the current state of European laws relevant to consumers, including the AI Act, the Digital Services Act and the Unfair Commercial Practices Directive, the researchers propose regulatory solutions. These include:

• addressing the information asymmetry by adjusting rules on burden of proof,
• information requirements such as those of the DSA or the UCPD should be accompanied by design obligations, including for optimisation systems;
• a new common standard of professional diligence to extend beyond the purely ‘economic’ interests of consumers.

The major contribution of this report rests in laying ground for what could become a horizontal obligation of ensuring fairness by design. This would allow horizontal consumer law to fulfil its purpose as the technology-neutral, future-proof protective framework that it should always be.