FEDMA’s response to Digital fairness check

This week, the Federation of European Data and Marketing (FEDMA) responded to the European Commission's targeted consultation on the Fitness Check of EU consumer law on digital fairness.

We positively welcome this thorough assessment by the European Commission before taking any further regulatory action. The current EU consumer protection framework not only comprises legislation which is yet to be evaluated such as the Omnibus Directive, but it is increasingly complemented by other regulations, including the Digital Services Act (DSA), Digital Markets Act (DMA), and Artificial Intelligence Act (AIA), which will address specific challenges brought by the digital age.

As such, though FEDMA recognizes that the digital environment can exacerbate certain problematic practices such as misleading online architecture, unlawful personalization practices, absence of clear and intelligible contractual information, etc., we believe that these issues do not show gaps in the EU consumer protection framework, but at most a need for enhanced enforcement and clarification of existing rules.

Specifically, FEDMA recommends:

• Resisting the temptation to address privacy and data protection issues related to consumers’ personal data through the lens of consumer law. Such issues can be better solved through the enforcement of the General Data Protection Legislation (GDPR) such as the requirements on consent, marketing rules under the ePrivacy Directive, or the online advertising transparency requirements under the DSA.
• Assessing and strengthening enforcement actions, especially by ensuring that consumer protection authorities have a sufficient level of resources and expertise to effectively enforce existing rules in the digital environment.
• Promoting collaboration among competent authorities in the areas of consumer protection, data protection, competition and AI
• Leveraging the principle-based nature of the Unfair Commercial Practices Directive (UCPD) to address new digital unfair practices rather than making additional regulatory layers which could result in increased legal uncertainty and weaken the future-proofness of the entire legislative framework
• Relying on guidance and self-regulation to clarify the application of EU consumer law to specific digital practices and sectors. Thanks to its high flexibility, quick response to consumer complaints and adaptability to changing market realities, self-regulation is a suitable tool, which supports regulatory instruments laying down rules on unfair commercial practices.