The European Commission says that consumers are losing time and money – various harmful commercial practices online cost EU consumers at least €7.9 billion per year. At the same time, the cost for businesses to comply with EU consumer law is much lower, not exceeding €737 million per year..

It has now published the findings of its Fitness Check of EU Consumer Law on Digital Fairness, which aimed to discover if current EU consumer protection laws are fit for purpose to ensure a high level of protection in the digital environment. 

The Digital Fitness Check covered three core Directives: the Unfair Commercial Practices Directive, the Consumer Rights Directive, and the Unfair Contract Terms Directive. 

According to the Commission, the Directives are still relevant and necessary for consumer protection. They also contribute to the Digital Single Market. However, the Digital Fitness Check has also illustrated that consumers behave differently online than offline and that online technology and behavioural tracking allow businesses to manipulate customer decision making. Consequently, consumer laws need to be better adapted to the specific practices and challenges that consumers face online.

The key challenges are:

• dark patterns in online interfaces that can unfairly influence consumers’ decisions, for example, by putting unnecessary pressure on consumers through false urgency claims;
• addictive design of digital services that pushes consumers to keep using the service or spending more money, such as, gambling-like features in video games;
• personalised targeting that takes advantage of consumers' vulnerabilities, such as showing targeted advertising that exploits personal problems, financial challenges or negative mental states;
• difficulties with managing digital subscriptions, for example, when companies make it excessively hard to unsubscribe; and
• problematic commercial practices by social media influencers. 

Some of these practices are already covered by existing EU consumer and other laws such as the Digital Services Act and the Audio-visual Media Services Directive.

As well as the substantive issues that the Commission has highlighted, it says that the effectiveness of EU consumer protection is undermined by insufficient enforcement, legal uncertainty, the increasing risk of regulatory fragmentation across member states, and the lack of incentives for businesses to aim for the highest standards of protection.

Following the Digital Fitness Check, the Commission says that it will deal with the most harmful practices such as dark patterns. It takes the view that increased legal certainty could prevent regulatory fragmentation and promote fair growth. There is scope for simplifying existing rules, without compromising the level of protection as well as making sure that consumer and digital regulation work together.

We can therefore expect further changes to EU consumer law.  We’ll delve into some of the detail of the report in future articles.

Update: our colleagues have written this article about the report's relevance to video gaming companies.