Digital Fairness Act: balancing enforcement and consumer reality

Key takeaways from a great lunch discussion on the Digital Fairness Act with European Commission officials and representatives from consumer rights / industry / SME organisations:

– Businesses of all sizes should start gathering data to show to the Commission the impact that personalised advertising has had on their growth, if applicable.

– The Commission doesn’t intend to ban personalised advertising, far from it, but rather to regulate certain kinds of behaviour that is already unlawful in principle based on consumer protection laws.

– The intent is therefore more to specify how certain practices are unlawful, a little like the list of unfair market practices.

– The key challenge will be to find the right balance – and to ensure that the practices called out are sufficiently clearly described.

– To my illustration that “eye level is buy level” in supermarkets already (and that consumers often end up with more in their “offline” shopping cart than intended) and thus not every *influence* should be unlawful but rather behaviour that does indeed (truly) lead to harm or rob a consumer of choice, a Commission official gave the example of a child racking up 8000€ in purchases in an online game. If that’s the standard, I guess that’s reassuring, but the trick will be to find that balance in legal terms.

Hugely important questions regarding fair & dark patterns, existing legislation (interaction with GDPR, ePrivacy and more) and what will come next.

Next steps: call for evidence + consultation process. Interesting times ahead!

Data protection adtech