Digital Fairness Act: combating “dark patterns” and unfair marketing
28 August 2025
Introduction
The European Commission has launched a public consultation on a new legislative act – the Digital Fairness Act (DFA) – aimed at strengthening consumer protection in digital markets. The purpose of this act is to fill the alleged regulatory “gaps” left by recent EU digital regulations, including the Digital Services Act (DSA) and the Digital Markets Act (DMA).
If adopted, the DFA will become a new cornerstone of EU consumer protection legislation in digital markets, significantly affecting how companies interact with consumers online. This concerns user interface design, pricing strategies, content personalisation, subscription management and digital marketing.
In this article, we examine the key aspects of the Digital Fairness Act, with particular attention to combating “dark patterns” and unfair marketing practices that are widespread in the digital environment.
What is the Digital Fairness Act?
The Digital Fairness Act is a proposed European Union law aimed at strengthening consumer protection in the digital environment. Public consultations on the DFA are open until 9 October 2025, and the European Commission is inviting interested parties to express their views on the need for new rules and what form they should take.
At the same time, the Commission is conducting public consultations on the consumer policy strategy for 2025-2030, including issues related to digital fairness and the enforcement of consumer protection, which are open until 31 August 2025.
These initiatives are part of a broader European shift towards stricter consumer protection in the digital sphere, also reflected in the recently adopted Digital Markets, Competition, and Consumers Act in the United Kingdom, which establishes similar rules on pricing and subscriptions, as well as enforcement powers for the UK Competition and Markets Authority.
Key areas of the DFA
The European Commission has identified six priority areas for action covering the entire consumer journey from design to delivery. The proposed measures include:
1.Banning dark patterns. Banning misleading design elements used on websites and in apps, such as deceptive pop-ups, pre-checked checkboxes or hidden opt-out options.
2.Ensuring price transparency. Banning “drip pricing”, where the initial headline price does not include all mandatory fees, and misleading “from X euros” offers; the total price must be clearly stated.
3.Protecting vulnerable users. Restricting the targeting of vulnerable users (such as minors or people in financial difficulty) and potentially introducing default opt-outs for certain user profiles, as well as other internal safeguards.
4.Combating addictive design. Establishing rules to address the “gamification” of digital products, such as reward loops and countdowns, especially for minors.
5.Regulating influencer marketing. Introducing stricter disclosure standards for influencers, for example, all paid posts must be clearly labelled in the local language.
6.Simplifying contract management. Introducing the right to cancel with one click, clear renewal terms, and greater transparency regarding chatbots and automatic renewals.
Dark patterns: definition and examples
Although the term “dark patterns” is explicitly mentioned in point 67 of the Digital Services Act (DSA), there is still no official legal definition extending beyond dark patterns on online platforms. In the consultation, the Commission uses a definition reminiscent of the Unfair Commercial Practices Directive (UCPD) and its link to transactional decisions that consumers would not otherwise have made. The Commission describes dark patterns as “unfair commercial practices implemented through the design of digital interfaces that may influence consumers to make decisions they would not otherwise have made”.
Even without a precise definition, the practices regularly cited as examples of dark patterns are often the same. Therefore, the list of practices to be assessed as part of the DFA consultation is unsurprising:
•Click fatigue — a technique that forces consumers to go through too many steps to make the desired choice;
•Creating the false impression that the consumer has no choice other than the seller’s preferred (prominently highlighted) option;
•Nagging — repeatedly asking or urging a consumer to make a specific choice;
•Pressuring consumers through claims of urgency and scarcity (e.g. a countdown timer), even if the relevant offer or available stock is clearly time-limited;
•Confirmshaming — pressuring consumers toward a specific choice through emotional language or shaming;
•Sneaking items into the shopping cart — adding new products or services to the shopping cart without the consumer's knowledge or consent when they are about to complete a purchase;
•Features that lead to a different outcome, than normally expected (e.g. a button labelled “cancel contract” leads to a page showing the benefits of that contract);
•Ambiguous language when presenting choices to consumers, such as the use of double negatives;
•Presenting choices in a directive manner, for example, prioritizing one choice over another by using a brighter color or larger font.
Addictive design: definition and examples
Currently, the term “addictive design” has no official legal definition. Unlike the term “dark patterns”, it is not directly mentioned in the preamble to any European legislative act. Although the DFA public consultation addresses dark patterns and addictive design in separate sections, it has not been legally clarified whether addictive design constitutes a dark pattern or whether the two practices should be distinguished. However, unlike in the case of dark patterns, the European Commission directly mentions minors as a particularly vulnerable group.
As part of the consultation, the European Commission describes addictive design as features “that make consumers spend more time and money online than intended”.
Even without an official legal definition, some practices are consistently cited as examples of addictive design. In the context of the DFA consultation, the European Commission is considering the following examples of addictive design:
•Infinite scrolling — where a page loads content without a defined end;
•Ephemeral stories — content that quickly disappears;
•Autoplay — which allows video or audio files to play without user intervention;
•Imposing penalties for non-use — for example, breaking a streak;
•Recommendation systems — aimed at increasing consumer engagement.
Influencer marketing: issues and regulation
One of the key areas of the Digital Fairness Act is the regulation of influencer marketing. In recent years, marketing through influencers has become a powerful tool for brands, but it has also raised concerns about transparency and potentially misleading practices.
The European Commission proposes introducing stricter disclosure standards for influencers. For example, all paid posts must be clearly labelled in the local language. This means that influencers must clearly indicate when their content is advertising and do so in a language their audience understands.
Issues related to influencer marketing include:
•Insufficient disclosure of advertising partnerships
•Misleading claims about products
•Targeting vulnerable groups, especially minors
•Lack of standardized labels for sponsored content
•Difficulties in monitoring and regulating cross-border influencer marketing
The DFA seeks to address these issues by establishing clear rules for influencer marketing and ensuring greater transparency and consumer protection, particularly for vulnerable groups.
Current regulation and its limitations
There are currently several laws in the EU that can be applied to combat dark patterns and other problematic practices in the digital environment. However, these laws have certain limitations that the DFA seeks to overcome.
Unfair Commercial Practices Directive (UCPD)
The UCPD prohibits unfair commercial practices, including misleading and aggressive practices that cause (or are likely to cause) consumers to make a transactional decision they would not otherwise have made. Articles 6 and 7 on misleading practices, Articles 8 and 9 on aggressive practices, as well as several practices listed in Annex 1 (the blacklist), are particularly relevant.
However, the UCPD applies to dark patterns only when they affect consumers' transactional decisions. This means that some dark patterns that have no direct economic impact may not fall within the scope of this directive.
General Data Protection Regulation (GDPR)
The GDPR contains data protection principles related to transparency and fairness, as well as requirements for data protection by design and by default. However, the GDPR applies only in the context of personal data processing and may not cover all aspects of dark patterns and addictive design.
Digital Services Act (DSA)
Article 25 and recital 67 of the DSA regulate dark patterns on online platforms that are not already covered by the UCPD or GDPR. However, the scope of these provisions is rather limited.
The DSA also contains rules aimed at protecting minors. In particular, Article 28(2) of the DSA prohibits profiling-based advertising when platforms know with reasonable certainty that the recipient of the service is a minor.
Digital Markets Act (DMA)
The DMA contains provisions concerning the obligations of “gatekeepers” regarding the easy withdrawal of consent and the prohibition on circumventing DMA obligations through contractual, commercial, technical conduct or other means, including the use of dark patterns to unfairly steer consumer decisions.
Artificial Intelligence Act (AI Act)
The AI Act prohibits the use of subliminal, manipulative or deceptive techniques that exploit vulnerabilities where they cause (or are likely to cause) significant harm.
Despite the existence of these laws, there are gaps in the regulatory framework, particularly regarding addictive design, which is currently not explicitly regulated. This may be related, among other things, to the difficulty of distinguishing between permissible user engagement and features that are problematic from a consumer protection perspective.
Who will the Digital Fairness Act affect?
The DFA is expected to apply broadly across the B2C digital economy, particularly to businesses that rely on online interfaces, personalisation, or recurring relationships with consumers. Any business that uses personalised offers, automated subscriptions, dynamic pricing, or design features that steer consumer choices may be directly affected by the new rules.
The sectors likely to be most affected include:
•E-commerce and digital platforms
•Streaming and subscription services
•Telecommunications companies and communications service providers
•Airlines and travel platforms
•Ride-hailing and delivery apps
•Online pharmacies
•Health, wellness and fintech apps
•App stores
•Gaming services
•“Buy now, pay later” (BNPL) service providers
What’s next? Timeline and next steps
The process of adopting the Digital Fairness Act involves several important stages:
•Now – 9 October 2025, public consultation period: The Commission is gathering the views of businesses, consumer groups and other stakeholders through an open consultation process. This is a key moment for the industry to shape the scope and structure of the proposed rules before they are developed.
•Q2 2026, final impact assessment and summary of consultations: The Commission will publish its final analysis of the consultation results, assessing the evidence on the need for new legislation and presenting its preferred policy direction.
•Q3 2026, draft legislative proposal: Based on the consultations and the resulting impact assessment, the Commission is expected to publish the official draft of the new Digital Fairness Act, setting out the proposed legal obligations for B2C digital businesses.
•2026-27, EU legislative process: The bill will then be reviewed and debated by the European Parliament and the Council, usually through a multi-stage process (committee review, amendments, trilogues). Final adoption may take place in late 2027, followed by implementation deadlines.
Opportunities to get involved
The consultation provides an opportunity to engage and help shape the scope and design of the likely legislative proposal. Participants in the consultation are best placed to ensure that their business models are accurately represented and understood, and participation may influence the practical impact of the proposal (for example, how fairness or transparency is demonstrated) and help regulators avoid unintended consequences.
Summary
The Digital Fairness Act represents an important step forward in the regulation of EU digital markets, aiming to fill the gaps left by existing laws such as the DSA and DMA. By focusing on dark patterns, addictive design and influencer marketing, the DFA seeks to ensure a fairer and more transparent digital environment for consumers.
Companies operating in EU digital markets should closely monitor the development of the DFA and consider participating in ongoing public consultations to help shape the final legislation. Preparing to comply with potential new requirements, particularly regarding user interface design, price transparency and subscription management, is crucial for companies seeking to avoid regulatory issues once the DFA enters into force.
As the legislative process progresses, companies should begin assessing their current practices for compliance with the proposed rules and consider the changes needed to ensure compliance with future requirements.
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