The European Commission will take a new step this Wednesday in its strategy to extend consumer protection to the digital sphere. The College of Commissioners is expected to give the green light to the new Digital Fairness Law, with which Brussels intends to update the Community framework against unfair commercial practices on the internet, from the dark patterns of digital platforms to influencer marketing, the unjust personalization of content, or the design mechanisms that encourage compulsive behavior.
The latest drafts of the proposal analyzed by DEMÓCRATA seek to establish a harmonized framework for the entire European Union and extend to all consumers the guarantees that Brussels has already begun developing to protect minors in the digital environment. The initiative aims to cover the “legal gaps” that persist in the application of the Digital Services Law (DSA) and the Artificial Intelligence Law (AI Act), through new obligations for operators and greater powers of oversight and investigation for Community authorities.
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The objective is to intervene directly on certain design and marketing practices which, although they have become widespread in digital services, do not always find a sufficiently precise response in the legislation in force. The Commission wants consumer protection not to depend only on the information that companies make available to them, but also on the fact that the services themselves are designed to avoid inducing harmful economic decisions.
The ban on dark patterns and manipulation mechanisms
One of the main pillars of the new regulation will be the prohibition of the design of online platforms that “deceive, manipulate or substantially distort” the economic behavior of consumers. Brussels intends to act in this way against so-called dark patterns (dark patterns), design mechanisms that condition users’ decisions through interfaces or processes that make free and informed choice difficult.
The sources consulted cite, as an example of these practices, actions aimed at forcing unnecessary steps during a purchase, giving a deceptive preference to options that are most favorable to the merchant, or using false alerts to induce an immediate decision. The objective is to prevent companies from using the architecture of their services to artificially steer consumers’ decisions for their own benefit. The proposal also focuses on functionalities that deliberately prolong the time spent on the platforms. Under the new regulation, merchants will have to provide tools that are easily accessible so that users can disable those functions that encourage compulsive use of digital services.
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Among them are the automatic reproduction of content without pauses, infinite scrolling (infinite scrolling), or unsolicited notifications that simulate interpersonal relationships. Brussels intends for these functionalities not to be imposed systematically nor become mechanisms that are difficult for the user to control.
Influencers, under new transparency obligations
Another key point of the new legislation will directly affect the influencer sector and the advertising disseminated through social networks. Brussels wants to require that content creators identify the commercial nature of their posts in a “clear, prominent and from the start” manner, using explicit terms such as “advertising” or “commercial collaboration”.
The measure seeks to put an end to ambiguity between personal recommendations and sponsored content, especially when the latter is presented under the appearance of independent opinion. The Commission wants consumers to be able to identify from the very first moment when a post responds to a commercial arrangement and not only to the experience or personal assessment of the person who shares it.
The regulation will go beyond transparency obligations. It will also prohibit influencers from addressing minors directly to incite them to buy products, as well as the promotion of dangerous goods or services or whose advertising is prohibited by law, such as gambling or certain speculative instruments. In addition, companies that hire these content creators will have to assume contractually responsibility for ensuring compliance with the new obligations. In this way, Brussels intends to extend transparency requirements across the entire commercial chain and prevent companies from detaching themselves from the advertising practices used by the profiles with which they collaborate.
Video games, virtual currencies, and purchases within the platforms
The new Digital Equity Law will also address commercial practices linked to online gaming and virtual environments, with special attention to monetization mechanisms that can affect the youngest consumers. Companies will be required to display the monetary value equivalent in real money of the items or virtual elements they market. The aim is to prevent the use of currencies specific to each platform or video game from making it difficult for users to understand how much they are actually spending.
In products aimed at minors, paid virtual currencies must remain disabled by default and require parental authorization for their use. The proposal also includes information obligations about the probabilities of obtaining each item in variable reward systems, known as loot boxes or reward boxes. Operators must clearly and transparently inform about the chances of obtaining each element and provide simple tools to disable these functionalities. With this, the Commission intends to reduce the opacity of mechanisms that can encourage successive purchases without the consumer knowing in advance the actual probabilities of obtaining the desired item.
Transparency in subscriptions constitutes another of the areas that negotiators have sought to incorporate during the processing of the proposal. The latest drafts envisage a system of mandatory reminders before a free trial period ends. Companies will have to inform users of the end date, the price that will be applied afterwards, and the service conditions. Moving from one free mode to another paid one will also require the consumer’s express consent. The intention is to prevent users from ending up paying for services because they did not notice that the trial period had ended or because they were unaware of the economic conditions that would come into effect next.
These obligations will also extend to renewals of continuing supply contracts. The proposal includes the possibility of terminating contracts renewed indefinitely with a maximum notice period of one month, with the aim of limiting the difficulties consumers face in leaving services they have subscribed to. In contracts executed digitally, companies must include a button or a function clearly identified with the wording "cancel the contract here". The cancellation mechanism will have to be as accessible and simple as the process used to sign up for the service. Brussels wants to prevent companies from facilitating subscription with a few clicks while multiplying obstacles when the user decides to cancel.
The proposal also includes guarantees in customer service. Consumers will have the right to request the involvement of a human interlocutor in online customer service services, an obligation with which the Commission intends to prevent the automation of these channels from becoming a barrier to resolving complaints or managing incidents.
Putting an end to planned obsolescence
The texts that this outlet has had access to also incorporate new restrictions against greenwashing and other related unfair commercial practices concerning the sustainability and durability of products. The proposal will prohibit generic environmental claims, such as "ecological" or "green," when they are not supported by demonstrated and recognized environmental performance. It will also ban claims of climate neutrality that are based exclusively on the offsetting of emissions outside a company’s value chain, without proving an effective reduction in its environmental impact.
Brussels also wants to intervene regarding products designed to deliberately limit their useful life and to encourage their replacement. The regulation aims to combat these practices, linked to planned obsolescence, and to strengthen the information that consumers receive about the durability of the goods they purchase. In parallel, the Commission will limit the possibility of hiding that a software update can degrade the performance of devices. Companies will have to ensure that consumers are not unaware of the consequences that certain updates may have on the operation of their products.
A replicated model
The new legislation will not be limited to introducing obligations for operators. One of its central elements will be the strengthening of the monitoring and enforcement capabilities of the Community authorities. Once the regulation enters into force, the European Commission will, following the enforcement model of the DSA, have direct powers to investigate possible infringements and impose sanctions. Drafts contemplate fines of up to the 6% of annual worldwide turnover of companies that fail to comply with the established obligations.
This framework will be complemented by the sanctions that the Member States will have to establish, with fines of at least 4% of the annual turnover of traders in the affected countries. The combination of both enforcement levels aims to prevent the new obligations from being reduced to declarations of intent and to ensure effective implementation in the single market.
On the eve of the presentation of the proposal, the governments of Spain, Denmark and Portugal sent a letter to the European Commission to demand ambitious regulation that would allow users to easily distinguish independent recommendations that appear in the algorithms of social networks from those that respond to commercial interests. The three countries consider that the expansion of recommendation systems forces stronger guarantees of transparency regarding the content that users receive and the criteria that determine its visibility. The initiative calls for these requirements to be accompanied by an усиление of "transparency and accountability among the actors involved".
For their part, European socialists had been pressing for the new legislation to also address dynamic pricing applied by certain ticket-selling platforms for cultural events or by transportation services with a driver. These are practices that can lead to variations in the price of the same product or service depending on demand, the time of purchase or other factors. However, these measures do not appear in the latest drafts analyzed by this outlet. Their absence suggests that some of the demands raised during the negotiations have not yet found a place in the text that will reach the College of Commissioners.
In any case, the sources consulted point out that "nothing is approved until everything is approved". The presentation on Wednesday will mark the next step of an initiative with which Brussels aims to update the rules of the single market for a digital environment in which commercial practices, persuasion mechanisms and business models evolve faster than the traditional consumer protection tools.