Digital Fairness Act: balancing consumer protection and innovation

So the Digital Fairness Act consultation process begins, with lofty yet potentially flawed goals. The Commissions wishes to notably:
– “[prevent] traders from using dark patterns and other unfair techniques that pressure, deceive and manipulate consumers online

– “[address] problematic personalisation practices, including situations where consumer vulnerabilities are targeted for the purposes of personalised advertising and pricing

– “[address] addictive design features that lead consumers, particularly minors, to spend excessive time and money on online goods and services”.

Sounds nice, but there are many issues in the large grey areas that this covers.

Dark patterns that *pressure* consumers? If the pressure is purely incentivising behaviour like all marketing and product placement choices, this should never be banned (otherwise we are treating shelf placement in supermarkets and button colours in digital interfaces differently for no objective reason). Robbing choice is one thing, encouraging one option without limiting the freedom to choose another one is another.

The targeting of consumer vulnerabilities for personalised pricing or advertising? We already have Art. 22 GDPR for the pricing part normally, and the Digital Services Act’s prohibition on the processing of special categories of personal data for advertising purposes.

Addictive features? I remember the days of “violent video games turn kids into criminals” and spending a lot of time as a young teenager on various digital services and goods. Money is one thing (the example of a child racking up 1000€ in online shopping was branded as an example in a recent roundtable), but time? This gets into a very tricky discussion about how paternalistic we wish to be as a society – and which objective and solid reasons we might have (if any) to block at societal level the amount of time spent on certain activities and not on others.

The DFA looks like an interesting legislative exercise – but there are so many ways this could go wrong if only some ideas prevail without proportionality and *all* fundamental rights and freedoms being taken into account.

Want help in responding to the consultation? Reach out!