In October 2024, the European Commission (EC) published its Digital fairness fitness check report as part of a continued effort to evaluate the effectiveness of European Union (EU) legislation with consumer protection laws.
Specifically, it evaluated the efficacy of the Unfair Commercial Practices Directive, the Consumer Rights Directive, and the Unfair Contract Terms Directive.
The report revealed these existing laws “have only partially achieved the objectives of providing a high level of consumer protection”, with harmful commercial practices online costing EU consumers at least €7.9bn per year, and further drew attention to the power and information imbalances between businesses and consumers online. Now, its findings are being used to shape the latest development in tech policy in Europe, the Digital Fairness Act (DFA).
Following the report, president of the European Commission Ursula von der Leyen wrote to Michael McGrath, the EU’s commissioner for consumer protection, to urge his successor to develop a Digital Fairness Act.
The mission letter outlined five core problematic practices in consumer-facing apps and online platforms today; including “dark patterns”, addictive design, personalised targeting features, problematic commercial practices of social media influencers, and features that make it excessively difficult to cancel digital subscriptions.
Recent legislation such as the UK’s Online Safety Act and the EU’s Digital Services Act (DSA) have aimed to address some of the illegal and harmful online practices that persist online, but a Digital Fairness Act could potentially tackle some of the more pervasive technological tools that have been adopted by tech companies and digital platforms to persuade and engage consumers.
For example, a study conducted by the EC in 2022 found that 97% of the most popular websites and apps used by EU consumers use at least one dark pattern, which are manipulative interface designs and functionalities which undermine informed consent and mislead users.
Similarly, the European Consumer Organisation’s (BEUC) consumer survey in September 2023 revealed that the majority of consumers feel personal data analysis and monetisation is unfair (60%), and less than half (43%) do not feel fully in control of the decisions they make or the content they are shown online.
With the DFA currently in its proposal phase, civil society organisations and campaigners are putting forward their suggestions to the European Commission. Many civil society organisations across Europe are hopeful that the act will tackle some of the most exploitative techniques that have been fundamental to the tech industry’s growth, and which they believe are responsible for many of the harms that digital users face today.
Fairness by design
European Digital Rights (EDRi) is the largest European network of organisations defending rights and freedoms online, and are working on a position paper with their members on the DFA. They hope that the act will address exploitative practices often employed by Big Tech and ad tech intermediaries, which they say “exploit users’ vulnerabilities, undermine their autonomy, and disproportionately impact marginalised communities”.
One area of focus they have for the DFA is to ensure it adopts a rights-centred approach that recognises digital users not just as consumers, but as people with broader individual and collective rights.
“A core assumption underpinning this approach is that vulnerability is inherent to the digital realm as we know it today, driven by an imbalance of power and significant information asymmetries,” says Itxaso Dominguez, a policy adviser at EDRi.
To address these challenges, EDRi are advocating for embedding principles of “fairness by design” and “fairness by default” into the act. They hope this will ensure that fairness and respect for fundamental rights are integral to the development and operation of digital platforms and services, rather than optional considerations.
Superrr Lab, an organisation advocating for just digital futures, recently published a position paper titled Digital fairness – shaping consumer protection in a just and future-proof way.
They too echo the desire for fairness by design and by default to be enshrined in the act: “The DFA will be most effective in truly enhancing digital rights if it addresses the root-causes of power imbalances in the digital realm. Consumers are humans with rights beyond markets and consumer protection law, and an effective DFA, should be shaped accordingly to ensure true digital fairness – in the sense of no discriminatory practices and opportunities for participation.”
The addictive nature of social media platforms is another digital design feature that the act could address, and an area where there is increasing public scrutiny, particularly in relation to its effects on children and young people’s mental wellbeing. Challenging this feature through policy could potentially address one of the main tenets of the industry’s extractive business model.
“Commissioner for justice Michael McGrath has said it plainly: ‘They want to keep people online constantly, including our children, and this is how to get money from advertising’,” Rosie Morgan-Stuart, campaign and policy consultant for People Vs Big Tech, said. “Meanwhile, the evidence of harm is mounting. Binding rules are clearly needed, given the severity of the risks and Big Tech’s repeated refusal to prioritise safety over profit.”
Enforcement and real accountability
Better enforcement is another core ambition for the DFA. The Digital fairness fitness check report drew attention to the pervasive non-compliance popular among tech companies and social media platforms, and the need for real accountability. Earlier in 2024, the European Commission opened proceedings against Meta, Alphabet and Apple over their failure to effectively comply with their obligations under the existing Digital Markets Act (DMA).
“To make a real difference, the Digital Fairness Act needs to set out clear rules that are easy to understand, to apply and – if necessary – to enforce. Unfortunately, current EU law does not provide sufficient legal certainty in relation to unfair commercial practices online and therefore does not adequately protect consumers,” says Urs Buscke, senior legal officer at BEUC.
EDRi echo the need for more robust enforcement mechanisms and the prohibition of manipulative practices outright, rather than relying on voluntary compliance mechanisms, which have historically failed.
Aside from voluntary compliance mechanisms, gaps in enforcement have also persisted due to the fact that the existing directives covered by the fitness check do not contain any reporting obligations.
An ambitious digital future: breaking up Big Tech
Some believe the DFA could potentially break up the monopolies within the tech industry seen across some of the Very Large Online Platforms (VLOPs), which the DSA defines as platforms or search engines that have more than 45 million users per month in the EU. Instead, they advocate for a digital ecosystem that allows independent, third-party content curation and moderation services.
“Unbundling the social networks could address many of the harms connected to addictive design and predatory data surveillance by providing consumers with a marketplace of options for recommender systems and other content curation tools,” says Katarzyna Szymielewicz, co-founder of freedom and privacy NGO Panoptykon Foundation. “This would also address the problematic nature of relying on VLOPs themselves as the arbiters of quality and credibility in ranking algorithms.”
On 16 January 2025, 18 former European presidents and prime ministers wrote to Von der Leyen urging the EC to pursue a structural breaking up of Google’s services to restore competition and end Google’s monopoly.
“Forced breakups are do-able and have a long and distinguished record through modern history – from John D. Rockefeller’s Standard Oil in 1911, to Germany’s gigantic IG Farben conglomerate after the Second World War, to AT&T in 1982,” says Claire Godfrey, executive director of Balanced Economy Project.
“They’ve just fallen out of favour. The US has proposed a break up of Google to fix the search monopoly, and the EU is in a position to support the US and break the tech giant’s monopoly over digital advertising. It needs the political will and courage more than anything.”
Despite the challenges, many of those Computer Weekly spoke with said the DFA could potentially result in transformative changes to the modern digital ecosystem. “The Digital Fairness Act offers a rare opportunity to set a global precedent, ensuring that fairness, transparency and accountability are embedded into the foundations of the digital ecosystem,” says Dominguez.
But this will only happen if policymakers strive to be bold. As Kim Van Spaarentak, GroenLinks MEP, urges: “We don’t have to accept the status quo. We can still fix our online environments if we dare to be ambitious enough. Alternatives are perfectly possible.
“If ethical design becomes the standard, the online space can be a fantastic place for knowledge-sharing, community forming and creativity. But whether the EU dares to go far enough is the big question for the next few years.”
