Today, Ecommerce Europe, EuroCommerce and Independent Retail Europe presented the results of a study about “Digital Fairness in Online Retail”. This study by Prof. Dr. Jürgen Kühling and Mr. Cornelius Sauerborn concludes that the current legal framework is mostly fit to ensure digital fairness and there is no need for a major overhaul of existing rules to address concerns against the backdrop of “dark patterns”. Rather, it proposes a set of recommendations focused on stronger enforcement of the current rules and incremental adjustments.
The study assessed cases of so-called ‘dark patterns’[1], brought up initially by the European Commission and consumer organisations and evaluated which cases most commonly occur in online retail and how current EU law could address these cases effectively.
In the past years, dark patterns and digital fairness have gained the attention of EU policymakers, seeking to amend horizontal EU consumer law which applies to all traders, including 3.5 million European retailers, while the most problematic examples put forward usually involve other sectors than retail. This could lead to the introduction of unnecessary restrictions for retailers limiting innovation and competition in the sector, as well as reducing product choice and affordability for EU consumers.
The three associations highlighted at the launch event that the EU already has the highest level of consumer protection. EU laws, such as the GDPR, the e-Privacy Directive, the AI Act, the DMA and DSA ensure the protection of consumers online. Furthermore, the UCPD’s principle-based safety net acts as a comprehensive safeguard. The interplay between these laws effectively tackles dark patterns. Instead of new regulation, the three associations call for more effective and efficient enforcement to ensure that consumers are well-protected.
One final finding of the study focuses on the suggestion by stakeholders to reverse the burden of proof from the consumer to the trader regarding the accuracy of a claim. The study found that doing so would undermine the fundamental rights of traders in this specific context.
[1] As defined in the study “a type of interaction, whether online or offline, which is aimed at consumers and objectively take advantage of human behaviour with the purpose of enforcing the trader’s unilateral interests without considering the interests of the addressee, regardless of whether they are also pursuing any public interests”.
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