European Commission Issues Responses To Digital Fairness Consultation – Advertising, Marketing & Branding

The European Commission has published a summary of feedback from its recent consultation on digital fairness. The
summary highlights several key areas of concern:

Dark patterns

Respondents strongly supported action against manipulative
design practices such as creating a false impression of choice,
using ambiguous language, and causing click fatigue.

Addictive design

Most participants backed measures to curb addictive design
features, calling for these to be switched off by default for all
users. There was less support for an outright ban on such features
for children.

Video games

There was strong support for greater transparency in gaming,
including:

• Displaying real-world prices for items purchased with virtual
  currencies




• Clearer odds for loot boxes and similar products




• Options for consumers to disable virtual currencies and related
  features

Unfair personalisation

Respondents favoured tighter controls on personalised
advertising, including bans on targeting minors and vulnerable
consumers with personalised pricing.

Influencer marketing

Two-thirds of respondents called for stronger safeguards against
unfair influencer practices. Key proposals included mandatory
disclosure of advertising, brand and agency compliance checks, and
restrictions on claims, eg those related to cosmetic procedures, to
protect minors.

Other issues

Only around 25% supported measures against drip pricing,
misleading reference pricing, and problematic subscription
contracts (which is interesting, as those issues were considered
key when the previous UK government passed the Digital Markets,
Competition and Consumers Act) and the CMA is employing a laser
focus on weeding out drip pricing and misleading reference pricing.
However, other people backed broader initiatives such as a
“fairness by design” obligation and recognising online
vulnerability in consumer definitions.

Perhaps unsurprisingly, businesses responding to the
consultation emphasised the need for simplification, particularly
reducing pre-contract information requirements and rebalancing
cancellation rights.

Next steps

We expect the first draft of the Digital Fairness Act towards
the end of the year, and it will be shaped by these insights.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.