Graz: A Commission study found that 97 per cent of popular websites and apps in the Union deployed at least one manipulative design technique. The forthcoming Digital Fairness Act is the attempt to legislate against a practice that is, on that evidence, close to universal.
The proposal is expected in the fourth quarter of this year. Its intended scope is broad: manipulative interface design, misleading influencer marketing, addictive design features, and unfair personalisation, with specific attention to minors. The coverage runs across business-to-consumer digital commerce, taking in online platforms and marketplaces, e-commerce and travel booking, apps, games and app stores, streaming and subscription services, telecoms and connected devices.
Dark patterns, the term of art, describe interface choices that steer users toward outcomes benefiting the business rather than the user, generally below the threshold of conscious attention. The catalogue is well documented: countdown timers signalling urgency that does not exist, consent dialogues where acceptance takes one click and refusal takes six, subscription flows engineered so that cancellation is materially harder than sign-up, pre-ticked add-ons. The Commission’s 2024 Digital Fairness Fitness Check put the cost to Union consumers at a minimum of 7.9 billion euro a year.
The legal question is why existing law has not dealt with this. The Unfair Commercial Practices Directive already prohibits misleading and aggressive practices. The General Data Protection Regulation already requires that consent be freely given. The Digital Services Act already bans certain interface manipulations on platforms within its scope. Consumer authorities have brought cases using all three.
The answer enforcers give is that the existing toolkit assesses practices one at a time, while harm accumulates from the combination. A single urgency banner is unlikely to meet the threshold for a misleading practice. A booking flow combining an urgency banner, a scarcity claim, a pre-selected insurance product and an obscured total price produces a decision the consumer would not otherwise have made, and the directive’s case-by-case structure does not capture that cumulative effect well. Nor does it handle personalisation, where each user sees a different interface and no fixed practice exists to be assessed.
That points toward the design choice facing the drafters. A blacklist of prohibited techniques is enforceable and predictable, and it ages badly, because interface design iterates faster than legislation. A principles-based prohibition on manipulative design survives longer and gives businesses very little advance certainty about which of their current practices will be found unlawful. The likely outcome is both, and the balance between them will determine how the Act performs.
The minors provisions are likely to be the most contested. Addictive design, autoplay, streaks, variable-reward mechanics and loot boxes sits closer to product architecture than to marketing, and constraining it touches the core engagement model of services whose revenue depends on time spent. Firms will argue that engagement features are not inherently manipulative and that a rule aimed at minors will in practice apply to everyone, because age cannot be verified without identification requirements that carry their own privacy costs.
Consumer organisations counter that the fitness check evidence is unusually strong for a file at this stage, and that the near-universality of the practices is itself the argument: a technique used on 97 per cent of sites is not a competitive edge anyone would lose, merely a floor everyone would rise from together.
Publication in the fourth quarter opens a negotiation likely to run past 2028. The practices in question will have changed several times by then.
