Will the upcoming Digital Fairness Act rewrite the rules of online commerce?

On 17 July, the European Commission launched its public consultation on the Digital Fairness Act, firing the starting gun on what is shaping up to be the most consequential piece of EU digital legislation in President von der Leyen’s second mandate. This upcoming law will seek to update European consumer protection law for the digital age, targeting a slew of digital practices that the Commission argues can be used to pressure or manipulate consumers online.

What do we know so far about the Digital Fairness Act?

At first glance, it looks like the Commission is breaking new ground with this legislation. The Digital Fairness Act is likely to pioneer the regulation of ‘addictive design’ – tech product and service features that lead consumers to spend excessive time and money online. The public consultation identifies infinite scrolling, autoplay features, content that disappears quickly, and penalties for disengagement as examples of addictive design – and suggests that the Commission is potentially considering banning these design features for minors. The Act is also likely to introduce new rules for online subscriptions and digital contracts, including potential new requirements to provide consumers with a clear ‘cancellation button’ and explicitly ask consumers before turning free trials into paid subscriptions. The public consultation also tests support for new rules to protect consumers from AI-powered automated contracting.

But while some aspects of the Digital Fairness Act are novel, others reopen familiar regulatory debates. Personalised advertising – extensively debated in the Digital Markets Act and Digital Services Act negotiations – is back on the table and may be more extensively regulated in the Commission’s upcoming proposal. Progressive MEPs may attempt to push for a complete ban of personalised advertising during legislative negotiations – while consumer groups and some Member States are arguing that the existing ban on targeting minors with personalised advertising should be extended to “all traders” and not just online platforms. The Digital Fairness Act is also likely to harmonise rules on social media influencer marketing – after five EU Member States adopted national laws to regulate this phenomenon.

 Explore how consumer enforcement powers are already shifting in the UK and what this means for businesses navigating tougher consumer fairness regimes

The Commission has also left the door open to revisiting the long-standing debate on age verification requirements. Thus far, the Commission has taken a conservative approach to age verification, with the recent Digital Services Act guidelines arguing that this is a proportionate measure in the case of only the most high-risk online services, such as pornography, gambling, and the sale of alcohol, tobacco and drugs. However, a caucus of five Member States – led by French President Emmanuel Macron – has been pushing the EU to go further, by adopting a ‘digital age of majority’ and imposing age verification requirements on social media services.

Although the Commission initially resisted reopening this thorny debate – arguing that Member States should determine whether to introduce a digital age of majority at national level – the public consultation explicitly asks respondents whether digital products that contain certain commercial practices should be subject to mandatory age verification or estimation tools. The Commission has also acknowledged that the protection of minors will be a cross-cutting priority running through all the new consumer protection measures introduced by the upcoming Act.

The Digital Fairness Act will not just impact the largest tech platforms: its provisions are likely to have implications for most businesses that reach consumers online. The video games sector will come under particular scrutiny. Amid pressure from the European Parliament’s centre-left, the Commission is actively considering regulating the sale of virtual items in video games, particularly where this is done with in-app currencies that blur the transaction’s real-world value, or where the purchase has an uncertain reward.

The public outcry over high ticket prices for last year’s Oasis reunion concert has also prompted a rethink of how online platforms display and calculate prices. Dynamic pricing, drip pricing, and misleading price discounts may soon be in the Commission’s crosshairs. This will impact a range of online marketplaces, including event ticket, travel and accommodation platforms. 

The Digital Fairness Act is also likely to upend long-settled principles in consumer law. For instance, the Commission has suggested it may update the concept of “consumer” in EU law for the digital age, arguing, for example, that most consumers read paper contracts when making analogue purchases but do not read terms and conditions online. The legislation could also reverse the burden of proof onto online companies in situations where consumers face disproportionate difficulty in obtaining information to prove that their rights were not protected.

Several open questions remain

The approach taken by the Digital Fairness Act will test the Commission’s commitment to its competitiveness agenda. Many of the sectors likely to be targeted by this legislation are populated by the SMEs that President von der Leyen has pledged to champion: for instance, according to the Commission’s own data, 80% of European video games companies employ fewer than ten employees. Moreover, the practices the legislation may restrict, particularly personalised advertising, have been particularly helpful for European SMEs to reach new consumers with a modest marketing budget.

The Commission appears to square this circle by also positioning the Digital Fairness Act as an opportunity to simplify the EU’s existing consumer protection framework. However, the limited detail in the public consultation suggests that the Commission’s thinking on this simplification exercise remains significantly underpowered.

The Commission has yet to confirm the type of initiative it will pursue. It must choose between a regulation – directly applicable across the EU – or maintaining the current approach of using directives for consumer protection initiatives. The latter would allow for more flexible implementation at the expense of creating fragmented implementation at national level. A regulation, by contrast, would support uniformity across the EU’s Single Market but at the cost of reduced local adaptability. 

The Commission must also decide how enforcement will be handled: left to national authorities or brought under its own control – an issue that may be tackled through a reform of the Consumer Protection Regulation that could be published alongside the Digital Fairness Act. The Commission has previously criticised the current enforcement system, which is fully in the hands of national authorities, citing fragmentation and uneven resources among national bodies as major weaknesses

Michael McGrath, the European Commissioner for Consumer Protection, has promised substance over speed: the new legislative proposal will not be tabled until the third quarter of 2026. Until then, there will be no shortage of views in Brussels on the direction this debate should take. Industry has argued that it is still grappling with compliance with the last Commission’s ambitious efforts to rewrite the digital rulebook, so new legislation should wait. By contrast, progressive MEPs and consumer organisations are advocating for stringent new rules – with some academics even arguing the law should go even further, by protecting consumers who use AI agents to shop on their behalf. This debate is clearly only just getting started.

This blog was written by Flint Director Anna Abela and Managers Sara Fornasiero and Jose Michaus. Before Flint, Anna worked in the European Commission and the Council of the European Union and now advises clients on EU regulation. Sara is a tech policy expert who previously led a global trade association’s EU digital policy advocacy. Jose holds an LLM in technology and data governance law and participated in the UN Internet Governance Forum as an Internet Society Young Ambassador.