AI agents and dark patterns targeted by Digital Fairness Act proposal

The DFA (72-page / 500KB PDF) was formally proposed by the European Commission on Wednesday. It represents the Commission’s attempt to bring aspects of EU consumer law up to date for the digital age, though the proposed new law would equally apply to business-to-consumer (B2C) operations in the offline world. It has a broad scope of application, including to financial services.

Included within the proposal are planned new obligations for businesses that make “automated systems” available that consumers can use to conclude and perform on their behalf. The provisions directly address increased use of AI agents in e-commerce, where AI tools are set up to operate autonomously based on dynamic reasoning, with only minimal human input. 

Under the proposed new law, businesses deploying AI agents would need to ensure those systems “contain easily accessible, understandable and effective tools”, enabling consumers to express their choices and set and adjust certain system parameters. The businesses would need to ask consumers, at the first time of use, whether they want to confirm all contracts the agentic AI tools proposes or are happy to be bound by the ones the tool selects, or if they want to take a middle ground where they are asked to “confirm only a certain type of contracts, based on specific criteria to be set by the consumer, including a maximum price and a time limit for the applicability of this choice”.

Beyond AI agents, the proposed new DFA would impose new restrictions on how businesses might seek to influence consumer behaviour, including through the design of their websites and apps.

Those proposals are at the centre of the Commission’s intention to replace the existing 2005 Unfair Commercial Practices Directive (UCPD) with the DFA. Unlike the UCPD, which needed transposed into EU member states’ national frameworks, the DFA, as an EU regulation, would apply directly in the 27 countries.

“The configuration of the legislation as a regulation with direct effect is a significant statement in itself” said Andreas Carney, technology law expert at Pinsent Masons. “It is seeking to strengthen uniformity in digital consumer rights across Member States.”

Under the proposal, existing rules from the UCPD would be copied over into the DFA, including provisions that ban unfair, misleading, and aggressive commercial practices. The UCPD lists practices that are automatically prohibited for being unfair, misleading, or aggressive commercial practices. The Commission wants to update the existing lists, including to target the use of so-called ‘dark patterns’ – features that seek to persuade consumers to take actions they might otherwise take by virtue of the way they have been designed.

The unfair commercial practices annex (11-page / 117KB PDF) lists 62 practices that the Commission considers should be prohibited, including 10 dark patterns. That list includes certain practices that imply product scarcity, the presentation of options to decline a transaction as being the wrong choice, and the creation of a false impression that the consumer does not have any other option apart from the prominently featured option.

The Commission intends to give itself powers to update the list and has further proposed a general rule to underpin it.

The general rule, if implemented, would prohibit businesses from designing, organising or operating their online interfaces, including components thereof, in a manner that is likely to deceive or manipulate consumers, or in a manner that is likely to otherwise materially distort the economic behaviour of consumers.

The new measures on dark patterns are broader in scope than the existing ban online platforms face, under the EU’s Digital Services Act (DSA), on using dark patterns in the design and organisation of their online interfaces.

The proposed DFA features restrictions and protections envisaged for children too, supplementing further new regulation planned under the EU KIDS Act. The DFA measures envisage an extension of existing DSA restrictions around targeted advertising and personalised pricing, as well as new requirements on businesses to ensure the option of paying for products using virtual currencies is disabled by default for users under the age of 18.

Further measures are designed to clampdown on features in some online games, with a ban on offering pay-to-win and pay-to-progress mechanisms to children proposed. Examples cited in the draft legislation include “artificial difficulty barriers, progression speeds that render the unpaid path illusory, or competitive structures in which outcomes are effectively determined by expenditure”. The Commission said “it may be difficult for minors to resist such perceived pressure to pay”.

Other new measures provided for in the DFA include steps to further regulate influencer marketing, including by strengthening disclosure requirements and clamping down on influencers promoting products that are banned or unsafe.

Businesses would also need to ensure they make tools available to disable features that “can reasonably be foreseen to encourage compulsive or excessive use” of their digital products, under the proposal.

“We have heard a lot about the potentially addictive nature of certain technologies or service offerings”, says Carney. “The requirements proposed in the DFA that seek to address this would mean that traders need to assess their products individually and potentially adjust them to ensure the various features can be disabled. This would apply to existing and future in-scope products. The criteria for making those assessments are not clear as yet.”

Further measures to increase transparency over the price of event tickets, where prices are liable to increase owing to “automated or algorithmic processes”, are also included in the draft DFA, together with measures to boost consumers’ real-time understanding of prices when they are in virtual queues.

New rules to strengthen consumer rights around the conclusion of free trial periods, around automatic renewal of contracts, and termination of online contracts, also feature in the DFA proposal.

“There’s a strong sense of wanting to give consumers more control and increased visibility over the contracts that they enter online. Improved transparency in interfaces, reminders of expiry of a free-trail, and a need for the consumer to expressly agree to continue on a paid-for basis all feed into this”, says Carney.

Competition and consumer law expert Angelique Bret of Pinsent Masons said: “The DFA seeks to more clearly encapsulate and address a range of digital practices that in recent years have raised consumer law concerns, including conduct involving online choice architecture, pricing transparency, social media endorsements, and subscription traps. Once finalised and adopted, the DFA will become directly applicable in all member states and also impact businesses based outside the EU whose activities target EU consumers.”

"The DFA would sit alongside the consumer protection regime in the UK, which has been ramped up by the Digital Markets Competition and Consumers Act 2024, giving the UK Competition and Markets Authority (CMA) powers to directly enforce and fine businesses in breach of consumer law up to 10% of turnover. The DMCCA followed the CMA’s 'Online Choice Architecture - How digital design can harm competition and consumers' discussion paper from 2022 (76-page / 1.49MB PDF), which identified several 'dark patterns', 'sludge' and 'dark nudges' as features which can be harmful to consumers," she said.

The European Commission has proposed to underpin the new consumer law requirements with a more robust enforcement framework, under which the Commission itself would have powers to investigate and issue fines of up to 6% of a business’ worldwide annual turnover where it finds non-compliance. Consumers, and competitors, would also have scope to pursue redress directly against companies over unfair commercial practices via the courts or other administrative processes within individual EU member states.

The DFA is the latest in a line of new digital regulation introduced by the Commission. It said the latest proposal is “coherent with the existing digital rulebook”, describing it as “complementary” of laws such as the Digital Services Act and the AI Act.

“This proposal aims to: reduce the detriment that consumers, including children and other vulnerable groups, suffer as a result of problematic digital practices; improve traders’ compliance with consumer protection rules in the digital markets; provide a more harmonised set of rules to facilitate businesses’ cross-border transactional activities,” the Commission said in a pre-amble to its legislative proposals.