Digital Fairness Act: EU cracks down on stealth influencer ads and manipulative app design

The European Commission is set to unveil new rules on Wednesday (11 November) to prevent people from being manipulated by companies and influencers – but digital rights experts have said the legislation doesn’t go far enough. According to a leak of the draft legislation, seen by EUobserver, the Digital Fairness Act (DFA) imposes more controls on how social media influencers can market products, while combatting dark patterns designed to manipulate consumers online. In 2022, an EU Commission study found that 97 percent of the most popular websites and apps used by consumers employed dark patterns – intentional design choices to manipulate users towards choices that are more profitable for companies. The DFA proposal aims to require that social media influencers state sponsorship deals by prominently labelling advertisements using terms such as “advertisement” or “commercial collaboration”, where influencers cannot misrepresent such adverts as a personal endorsement. “People expect that influencers provide genuine advice or tips, not to be quietly sold the latest anti-wrinkle cream or fashionable outfit,” said Agustín Reyna, director general of consumer rights body BEUC. “If someone is promoting products on social media, it should be clearly stated.” The draft proposal also proposes a complete ban on misrepresenting information about products, or sending fake message notifications suggesting someone has been in touch when really, nobody messaged. “Digital markets have for too long left consumers feeling disempowered and frustrated in a maze of complex cancellation processes for subscriptions they do not want, untransparent ticket pricing, or ‘low stock’ warnings that pressure them,” Reyna added. The draft legislation forbids misleading choices about data-sharing or cookies which present refusal as the wrong choice or use deliberately confusing phrases. And the wording of the leaked act also says that cancelling an online subscription should be easy. Opt-out for addictive features The DFA proposal would only ban personalised advertising and pricing if likely to cause harm and if the consumer is vulnerable. And it does not set out to ban addictive features like autoplay or infinite scrolling unless users actively switch off these features. “That leaves significant uncertainty and potentially lengthy case-by-case assessments,” said Itxaso Domínguez de Olazábal, senior policy advisor at rights watchdog EDRi. “Why recognise the problem of addictive design so explicitly without introducing stronger obligations to prevent it?” “Offering an opt-out should not automatically be considered sufficient,” she said. However, Domínguez de Olazábal called it a “significant step” that “the commission’s proposal creates binding rules against manipulative design, banning fake message notifications, repeated pressure to reverse choices and deliberately complicated refusal mechanisms.”