The rise of the digital economy has brought immense convenience, but it has also led to sophisticated commercial practices that exploit consumer vulnerabilities. In a major move to address this, the European Commission is developing the Digital Fairness Act (DFA). Consumer association Ius Omnibus submitted a comprehensive commentary during the public consultation, advocating for a robust, unified legal framework to ensure transparency, fairness, and accountability in the digital ecosystem.
Ius Omnibus emphasizes that unfair online practices — such as misleading interfaces, covert advertising, and manipulation based on personal data — erode consumer confidence and disproportionately impact minors and vulnerable individuals. The DFA is viewed as the crucial pillar needed to establish a dynamic balance between consumer protection, technological innovation, and market fairness, complementing existing legislation like the DSA, DMA, and AI Act.
Key Recommendations from Ius Omnibus
The commentary outlines several critical areas where the DFA must go further than current fragmented regulations.
1. The DFA Must Be a Regulation, Not a Directive
To ensure immediate effectiveness and harmonised application across all Member States, Ius Omnibus strongly recommends that the DFA be adopted as a Regulation. Using a Directive would risk long periods of delay due to the need for national transposition, undermining the speed required to regulate rapidly evolving digital markets. A Regulation guarantees a uniform and immediate application of the measure.
2. Unifying the Fight Against Dark Patterns
The association identifies the fragmentation and lack of a coherent legal definition for dark patterns (manipulative interface designs) as a major regulatory weakness.
Ius Omnibus proposes a clear, harmonized legal definition:
A dark pattern should be understood as any digital interface design or structure deliberately conceived to distort, manipulate, or limit the user’s freedom of choice, causing a result the user would not have consciously and voluntarily chosen.
To achieve effective regulation, they propose:
Typology: Classifying dark patterns into categories like deceptive, coercive, obstructive (e.g., “roach motel” practices that make cancellation difficult), covert, and emotional to facilitate proportionate regulatory treatment.
Design Obligations: Requiring platforms to carry out ethical design impact assessments, similar to data protection impact assessments.
Data Minimisation: Including an express provision against digital designs that collect more personal data by default than is strictly necessary for the service, reinforcing the GDPR’s minimisation principle.
Enforcement: Establishing a European Dark Patterns Observatory and strengthening cooperation between data protection, consumer, and competition authorities.
3. Strengthening Protection in Online Contracts and Ecosystems
Current consumer law, designed for analogue environments, struggles with the reality of opaque digital contracts, one-click acceptance, and lengthy electronic texts. The DFA must reinforce the principles of transparency, legibility, and accessibility by implementing concrete, verifiable criteria.
Key measures include:
Comprehensibility Criteria: Developing standardized methodologies, such as readability indicators and ‘clear contract’ certifications, to objectively verify that digital contracts are understandable before they are deployed.
Platform Liability: Establishing a regime of shared or subsidiary liability for intermediary platforms. This would require platforms to verify that the contracts they host comply with the DFA’s transparency standards.
4. Reinforced Protection for Vulnerable Consumers
The traditional ‘average consumer’ standard is insufficient in an age of algorithmic profiling, where platforms personalize offers and exploit specific psychological or cognitive vulnerabilities.
Ius Omnibus praises the DFA’s intention to expand protection for vulnerable consumers to include those with low digital literacy. However, implementation must be cautious to protect privacy.
Proposed protection mechanisms:
Privacy-Respecting Identification: Identifying vulnerability through non-invasive means such as voluntary self-identification or universal design requirements.
Targeted Bans: A ban on manipulative techniques or misleading designs that are specifically aimed at vulnerable users.
Equity Assessments: Implementing obligations to assess the impact on digital equity, akin to data protection impact assessments.
5. Promoting Fair Competitiveness
Beyond consumer rights, the DFA has the potential to act as a lever for sustainable competitiveness within the European digital single market. By establishing clear standards, the DFA restores trust and creates a common framework that benefits ethical businesses.
The association urges the DFA to:
Mandate Interoperability: Promote open technical standards that facilitate interoperability between platforms and services, reducing technological dependence on large providers and expanding opportunities for SMEs.
Incentivize Compliance: Stimulate responsible innovation and “compliance by design,” transforming regulatory compliance into a reputational and competitive advantage.
In conclusion, Ius Omnibus sees the DFA as a decisive opportunity to unify the legal treatment of digital unfairness and ensure that technological transformation strengthens, rather than erodes, the fundamental rights of individuals in the European digital environment.