1. The ‘Digital Fairness – Fitness Check’ (DFCC) is a review by the European Commission (EC) assessing whether the EU’s consumer law framework is fit for purpose in the digital age, focusing on three core pieces of legislation: the Unfair Commercial Practices Directive (UCPD), Consumer Rights Directive (CRD) and Unfair Contract Terms Directive (UCTD) (together the Directives).
2. The general view is that the lack of enforcement has left EU consumer law largely underused when it comes to meeting its intended objectives. The view of the EC is that there is not sufficient certainty in the Directives’ measures for businesses to pursue “digital fairness by design”, or any incentives for doing so.
3. The EC highlights that there is no specific legislation that regulated addictive design or specific features such as virtual items or in-game currencies. While the DFCC does not introduce ‘new law’, it does provide an indication of what we can expect future consumer protection legislation (e.g. the proposed ‘Digital Fairness Act’) to build on.

As mentioned above, the DFCC is a holistic assessment of the Directives and whether they are effective in the digital environment. As part of this assessment, the EC has focused on specific case studies (negatively framed as “problematic practices”) against the Directives. These case studies were selected taking into account the frequency of their mentioning by stakeholders in the consultations, the availability of evidence and the relevance for the material scope of the Directives.

Video games appear primarily in the case study ‘addictive design and gaming’. However, many of the other case studies will also be relevant to video games companies, including ‘personalisation’, ‘contract cancellations and digital subscriptions’ and ‘dark patterns’

1. The EC sets out that concerns in interface design and functionalities may “induce digital addiction” in order to increase the amount of “time, money and engagement” that consumers spend. Although the majority of this section focuses on practices more commonly associated with social media (autoplay, pull-to-refresh and infinite scroll) there is also mention of certain practices that apply to games (incentives for continued engagement, microtransactions during critical gameplay moments and loot boxes).
2. The UCPD Guidance from 2021 set out that the UCPD definition of ‘transactional design’ does not just include purchasing decisions, but decisions to “continue using the service” (which could therefore encompass engagement techniques). However, the EC notes that this interpretation is not reflected expressly in the legal provisions and there have been diverging national rulings.
3. Virtual items and in-app currencies are specifically called out, most notably in relation to confusion around the real-world price of virtual items and use of loot boxes. There were also concerns pointed out around practices such as bundling, ‘pity timers’ for loot boxes, odd pricing and paying to skip waiting times. Right now, the EC does not believe that the existing Directives specifically regulate any of these topics.
4. Price transparency was also a key topic raised by the BEUC in its ‘Game Over’ report (and complaint to the European Commission).

With only a limited number of dark patterns directly prohibited by the UCPD blacklist (e.g. fake urgency claims, misleading availability), the EC sets out that none of the existing prohibitions refer specifically to digital interfaces and their application hinges on a case-by-case assessment. The UCPD in the digital environment is also largely unexplored from an enforcement perspective. Many stakeholders set out that further dark patterns could therefore be added to the blacklist such as ‘confirm-shaming’, ‘nagging’ and ‘click fatigue’.

1. Much of the EC’s concerns around personalisation are related to the lack of transparency. The consumer survey identified problems such as consumers having difficulty: understanding how their personal data would be used; opting out of personalised offers and changing their preferences.
2. There is also particular concern from consumers that “personal data analysis and monetisation [was] unfair”. Although many of these practices are dealt with under regulations such as the GDPR and the DSA, there was concern expressed about profiling in relation to B2C personalisation practices. Stakeholder views varied, including many arguing in favour of the status quo, whereas others desired more consumer choice.

The EC highlights that EU consumer law fully applies to digital contracts and subscriptions concluded online, particularly around cancellation and transparency on key information. However, there is concern that there is no express regulation of automatic renewals, reminders, price hikes or switching from free trials to paid subscriptions. Due to the absence of rules, national law applies which has led to regulatory fragmentation (e.g. Germany and France introducing the concept of the accessible ‘cancellation button’), although there has been enforcement activities at the EU level. Concerning renewals, the EC refers to the European Parliament’s 2023 report on video games, which called for opt-in for auto-renewals.

Although the Directives were deemed to serve as a good base level of minimum consumer protection, the principle-based approach is both a help and hindrance. On one hand, it has meant that consumer law has largely remained flexible enough to regulate many aspects of the digital economy. However, the EC’s view is that the lack of certainty in many areas has resulted in both “regulatory fragmentation” at the Member State level and also a lack of public and private enforcement of the relevant rules. The EC did note that many stakeholders have called for the enforcement of existing legislation before more laws are introduced.

The Board Opinion points out several flaws of earlier versions of the report predominantly related to the data being relied on, some of which are still relevant to the final report itself, including:

1. lack of monitoring and evidence collection in this space means comparing the compliance position now to several years ago (the last Fitness Check was in 2017) is difficult;
2. the cost to businesses for compliance are hard to quantify, particularly given the high variation in the shape, size and type of businesses operating in the digital economy; and
3. estimations of consumer detriment primarily rely on opinion data (i.e. perceived problems are equated to complaint incidence rates), which is limited.

1. The DFFC is a policy assessment only, however it will no doubt set the tone for incoming Commissioner for Justice, who has been tasked by Ursula von der Leyen to “develop a Digital Fairness Act”.
2. The EC will ultimately be the body to draft any new legislation, so the DFCC does likely give us strong indications of how a Digital Fairness Act might end up taking shape.

1. The possibility of a more prescriptive law, backed by large fines under the existing Modernisation Directive, aimed at engagement techniques and monetisation is unprecedented for the games industry.
2. A Digital Fairness Act could have a detrimental impact on the free-to-play sector in particular and heavily curb many well-established in-game economies and engagement practices. For example, some of the suggested solutions by stakeholders included banning the sale of loot boxes to minors and turning in-game purchases off for all players by default.