The European Commission announced plans for a Digital Fairness Act towards the end of 2024, but it now looks likely that a proposal won't follow before 2026. Does this leave the EU behind the UK on consumer protection reforms?
Way back in 2015, the UK introduced a major reform of consumer protection law with its Consumer Rights Act. This went well beyond the remit of the Consumer Rights Directive but followed some of its definitions. The EU introduced similar but (of course, slightly different) legislation in the form of the Sale of Goods Directive, the Digital Content and Digital Services Directive and the Omnibus Consumer Directive in 2019 after Brexit. Further consumer protections have been introduced under product safety legislation and to some extent the Digital Services Act, but there's more to come.
On 4 October 2024, the EC published a Working Document Fitness Check on EU consumer law on digital fairness. This evaluated the level of consumer protection in the digital environment under the Unfair Commercial Practices Directive, the Consumer Rights Directive and the Unfair Contract Terms Directive. It found a number of issues which led it to conclude that the current consumer protection framework is insufficiently effective, principally:
- the law does not explicitly address some of the problems arising from emerging technologies
- the EU consumer framework is complicated, not least due to the recent introduction of new digital legislation (Digital Services Act, Digital Markets Act, Data Act and AI Act), but also due to a lack of harmonisation across Member States
- enforcement is inconsistent, notwithstanding the impact of the Consumer Protection Cooperation Regulation.
The report identified a number of issues where the level of consumer protection was insufficient including in relation to:
- dark patterns and addictive design – the report suggests prohibiting specific practices including drip pricing and introducing a principle of 'fairness by design'
- subscription traps
- AI chatbots when used as sole means of communication with customers
- unfair contractual terms, particularly those which are difficult to understand or insufficiently clear
- personalisation practices (e.g. targeted advertising) - concerns over excessive personal data collection, lack of transparency and the use of personalised pricing, particularly when targeting the vulnerable
- social media and influencer marketing – lack of transparency around paid-for content and commission arrangements, particularly when content is targeted at children
- dropshipping – the sale of products which traders do not hold in stock at the time of sale
- ticket sales – particularly dynamic pricing and the secondary ticketing market - using scalping bots to bulk-purchase tickets which are then re-sold at inflated prices.
Some of these issues are covered to a degree by both existing consumer protection law and newer legislation like the Digital Services Act (DSA). For example, Article 25 DSA prohibits the use of dark patterns by online platform providers and Article 28 requires online platforms to introduce measures to protect minors which might also cover dark patterns. In addition, these may also fall within the scope of the Unfair Commercial Practices Directive – indeed, guidance on this Directive includes a section on dark patterns – the General Data Protection Regulation or the Consumer Rights Directive. The DSA also bans ads targeting minors or using special data for profiling on platforms, although not, for example in games and apps.
The Fitness Check did not specifically propose new regulation, but the new European Commission, which took up its position in December 2024, quickly began to talk about a new Digital Fairness Act (DFA) proposal.
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 many of the issues raised in the Fitness Check report. So far though, there has been little further detail as to the Commission's plans.
On 11 February 2025, the European Commission published its 2025 Work Programme which was expected to provide more detail around the DFA. In fact, it contained only limited information about planned consumer law reforms although it did refer to the next Consumer Agenda 2025-2030 which the Commission says will include "a new action plan on consumers in the single market, ensuring a balanced approach that protects consumers without overburdening companies with red tape".
As part of this, public consultations on the DFA are expected to take place in the next few months (planned for Q2 2025). The consultations are widely expected to focus on fairness by design and existing regulatory gaps. Given the Fitness Check report criticises the fragmentation of national consumer protection laws in EU Member States, the DFA could well 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.
Speaking to an EU Parliamentary Committee in April 2025, Margaret Kanellopoulou, the head of the consumer law unit in the EC Department of Justice, reportedly said addictive design of online services, targeted advertising and influencers will be areas of focus, particularly as they relate to minors. She also singled out virtual in-game currencies and lootboxes as areas where the Commission has concerns around fairness, suggesting they might also be within the scope of the DFA.
On 8 April 2025, Commissioner McGrath spoke to MEPs about digital fairness, enforcement and product safety. He confirmed that the Consumer Agenda 2025-2030 would be published this year and complemented by an Action Plan for consumers in the Single Market that would set out actions in more detail. The Commissioner has also announced an ambitious timeline for the DFA initiative (please see here). Accordingly, the adoption by the Commission is planned for Q3 2026, saying it will eliminate "identified legal gaps and unfair consumer practices used in digital spheres, such as addictive design, dark patterns, burdensome subscription cancellations". Shortly after, at the European Retail Innovation Summit in Brussels on 10 April 2025, he said that “the upcoming Digital Fairness Act will be both, a pro-consumer and pro-business initiative that supplements the Digital Services Act and the Digital Markets Act”.
Another avenue of potential change was set out in the EC's Communication on a comprehensive EU toolbox for safe and sustainable e-commerce on 5 February 2025. Although this focuses largely on product safety, it also looks at aspects of consumer protection and sets out the Commission's approach to addressing challenges posed by e-commerce imports across their lifecycle. The Commission will assess and report on the highlighted areas and consider whether to propose new measures within one year. The Commission is particularly concerned with safety standards of non-EU goods, and Chinese platforms Shein and Temu are among those under the scrutiny of European Consumer Group BEUC which is asking the Commission to take action. Temu is also under investigation under the DSA.
Meanwhile, the UK has either legislated on or is considering regulating many of these issues. The Digital Markets Competition and Consumers Act, among other things, has reformed the unfair commercial practices regime including by introducing new rules on fake online reviews, and in relation to drip pricing in invitations to purchase. It also reforms the subscription contracts regime by introducing requirements which are expected to apply some time in spring 2026. In addition, studies into further reforms relating to drip pricing, dynamic pricing and secondary ticketing are ongoing. 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.
Clearly the EU and UK have very similar concerns but it looks as though the DFA 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.
