ALG questions need for fresh EU digital law
Lawyers at A&L Goodbody (ALG) have said that proposed digital legislation from the European Commission appears to contradict its stated goal of simplifying laws to boost competitiveness.
The ALG lawyers say that the changes proposed in the Digital Fairness Act (DFA) “may also be unnecessary or, at least in part, duplicative given existing legislation”.
The DFA, which has not yet been drafted, arose from a ‘fitness check’ of existing consumer-protection rules, which found significant concerns about their ability to address newer technologies such as AI and algorithmic decision-making.
‘Significant concerns’
In a note on the firm’s website, the ALG lawyers highlight several practices identified in a commission working paper that are likely to be addressed in the DFA:
- Addictive interface designs and functionalities – including infinite scroll, autoplay, pull-to-refresh, and ephemeral content – that exploiting psychological triggers, especially among vulnerable consumers such as children,
- ‘Dark patterns’ or deceptive designs that could influence consumers to take decisions that they would otherwise not have taken,
- Personalisation and profile – including price discrimination based on location, device, or browsing history and targeted ads exploiting emotional states or financial stress,
- Difficulties cancelling digital subscriptions,
- ‘Dropshipping’, where sellers forward orders to third-party suppliers, and
- Influencer and social-media marketing.
The ALG lawyers say that, although stakeholder feedback is still emerging, early responses raise “significant concerns”.
On dark patterns, for example, they say that, while the term is not expressly defined in EU legislation, provisions under the Digital Services Act (DSA), GDPR, and the Unfair Commercial Practices Directive may be sufficient to address this practice.
They add that regulators have already been active in this area.
Addictive design
The lawyers argue that the DSA is also relevant in regulating addictive design.
“The European Commission has several ongoing investigations which include consideration of whether certain service features have an addictive design, leading to negative consequences to users’ well-being,” they point out.
“The above are just a few examples, but they arguably call into question the need for a net new legal instrument in areas which are already highly complex and, at least in part, already heavily regulated,” ALG concludes.