On 17 July, the European Commission launched its long-awaited consultation on the upcoming Digital Fairness Act (DFA) – a legislative initiative aimed at strengthening the European Union’s online consumer protection rules. This move follows the Commission’s 2024 comprehensive review of EU consumer law, which highlighted growing concerns about the asymmetrical power relationship between consumers and digital service providers.
The legislation is expected to cast a wide net, applying to a broad spectrum of digital businesses from e-commerce platforms, app developers, gaming companies, online services, and digital advertising firms. The scope of the legislation is ambitious, targeting a range of practices that have come under increasing scrutiny from the Commission:
- Personalisation
- Addictive design features and gaming
- Dark patterns
- Influencer marketing
- Dynamic pricing
- Contract cancellations, digital subscriptions, and unfair contractual terms
The Digital Fairness Act consultation: familiar themes, new signals
The consultation includes a call for evidence and a public consultation questionnaire to support the Commission’s impact assessment on the DFA.
Encouragingly, many of the themes align with expectations, meaning some in the industry have already begun to prepare responses and gather evidence. Importantly, the questionnaire also hints at a willingness to consider simplification, albeit in modest terms.
That being said, several elements of concern stand out. Chief among them is the Commission’s continued indecision on the legal format of the DFA – whether it will take the form of a Directive or a Regulation. This uncertainty complicates industry planning and signals that key structural questions remain unresolved.
Moreover, the tone of the questionnaire suggests the European Commission has not yet meaningfully shifted its perspective on the need for the DFA or its intended purpose, despite extensive stakeholder input in recent months about the possible unintended consequences for businesses. Little attention is given to determining the cost of possible measures on business and innovation. Furthermore, the underlying assumption held by the European Commission continues to be that the practices under scrutiny are inherently harmful – an interpretation that overlooks their role in the natural evolution of digital business models.
The final section of the questionnaire also introduces several concepts that warrant closer examination. These include proposals for regulatory or non-regulatory measures such as ‘fairness by design’, a potential reversal of the burden of proof, and a redefinition of the ‘average consumer’ – each of which could have significant implications for compliance expectations and legal interpretation.
Looking ahead: digital fairness
Stakeholders have until 9 October to respond to the consultation. With Commission adoption targeted for Q3 2026, the window for industry to shape this critical proposal is now open.
As the legislative process unfolds, it is essential that consumer protection remains at the heart of the Digital Fairness Act. However, this must be balanced with a clear-eyed view of the risks of overregulation. Innovation is a cornerstone of Europe’s digital competitiveness, and any new rules must be carefully calibrated to avoid stifling the very creativity and agility that drive progress and innovation in the digital economy.
At Access Partnership, we help clients navigate EU regulatory developments and engagement opportunities, offering strategic advice on how to seize new initiatives. For more information, contact Dana Poponete at [email protected].
