Our blog series focusses on the European Commission’s Digital Fairness Fitness Check and a potential future Digital Fairness Act which may be on the horizon. The first part of our series provided a concise overview about the background of the Digital Fitness Check and took a closer look at Dark Patterns. This week, we take a deep dive into Addictive Design and Gaming, outlining the various digital design tools implemented to keep users engaged, the corresponding results of the Digital Fairness Fitness Check and the question which countermeasures the EU might take in the future.
I. What is addictive design?
The Digital Fairness Fitness Check understands ‘Addictive Design’ as digital interface designs and functionalities which are meant to increase the amount of time, money or engagement spend by consumers on the respective digital product, thereby inducing digital addiction. While it is generally in the trader’s (legitimate) interest to design their products in a manner that increases user demand (this is, after all, what makes products interesting in the first place), it is argued that certain designs increase the risk of digital addiction and may cause a risk of economic, physical and mental harm, especially to vulnerable consumer groups. The report mentions features such as only temporarily available content, incentives for continued engagement in the form of rewards as well as the integration of game-like elements in non-gaming environments as examples. Practices such as autoplay, allowing the consumer to pull an interface to load new content (pull-to-refresh) and automatically showing new content when the user scrolls down (infinite scroll) are also considered potentially problematic by the report.
The European Commission’s (EC) concerns regarding gaming mostly relate to more specific phenomena such as virtual currencies (which may cause confusion of the actual price of in-game purchases) or so-called loot boxes (purchases of randomly selected virtual items).
II. What are the main results of the Digital Fitness Check?
The report considers that empirically digital addiction is a real problem based on a 2019 study by the European Parliament Research Service, which concluded that digital addiction affects millions of European consumers. The public consultation conducted for the Fitness Check points in the same direction: 33% of consumers reported spending too much time or money using certain websites or apps while 31% of the participating consumers reported that they spend more time or money on digital products then they had intended to due to specific features.
The report further notes regarding in-app virtual currencies (like coins, gems, or credits) that 47% of consumers reported being confused about the real price of virtual items. 29% reported that the real price was unclear because it was only indicated in the app’s virtual currency.
III. Existing legal framework and perceived shortcomings
The report notes that the European legal framework already contains provisions which could be used to address some of the problematic practices but also explains (perceived) shortcomings in this regard:
- General provisions of the Unfair Commercial Practices Directive (UCPD) could apply in certain scenarios, such as when a trader is exploiting known vulnerabilities (eg lack of impulse control, gambling history) to unduly influence the consumer’s decision. Offers for the purchase of virtual currencies must comply with the information requirements of the UCPD (and – as the report does not mention – must not mislead consumers). Some more specific practices (such as messages to children that they should ‘buy now’ or that a video game character ‘needs their support’, persistent and unwanted solicitations through push messages or indications that a consumer has already won a price) are already explicitly forbidden based on the UCPD black list.
The EC also notes that its UCPD guidance gives some examples of addictive design interfaces in the context of gaming which could indicate the risk of unfair practices in certain circumstances (eg slot machine designs, loot boxes, betting, offering micro-transactions during critical moments of the game, persuasive nagging, or the use of visual or acoustic effects to put pressure on the consumer). The EC’s report notes, however, that the application of the UCPD would require a case-by-case analysis and that the absence of specific provisions covering digital addiction may create legal uncertainty.
- The report considers whether the General Product Safety Regulation (GPSR) could cover some of the broader risks of digital addiction but notes that this is uncertain because it would ultimately depend on an interpretation of the GPSR which would also cover consumer’s time and negative consequences to their mental health.
- The AI Act prohibits certain addictive design features involving the use of AI if they cross the threshold of purposefully manipulative or deceptive techniques or exploiting the vulnerabilities of persons related to their age, disability or a specific social or economic situation, and if it leads or is (reasonably) likely to lead to significant harm. However, the EC notes that it is currently not evident whether addictive design functionalities could cross this high threshold.
- The report notes that the Digital Services Act (DSA) has brought considerable progress, in particular in relation to the protection of minors. This includes an obligation for Very Large Online Platforms and Very Large Online Search Engines to undertake risk assessment and mitigation measures regarding the rights of children, which may include exposure to content which may impair their mental health and online interfaces which may induce addiction. While the report mentions two proceedings against TikTok as examples for measures based on the DSA, it also concludes that the DSA does not apply to all relevant traders.
- The report considers the Consumer Rights Directive (CRD) in the context of the sale of virtual items and the use of in-app currencies. However, the EC assumes a significant lack of compliance in the national implementation laws when it comes to the sale of virtual items and in-app currencies. The report also assumes uncertainties about the legal qualification of the contracts for the purchase of virtual items and in-app currencies. It was unclear whether the offer of such items or currencies present a digital service, digital content or a digital representation of value. Additionally, the question of whether such items are sold or only licensed also needs answering according to the EC. The answer to these questions is important to assess the applicability of specific consumer rights, in particular the 14-day right of withdrawal.
The EC’s report concludes that there is currently only limited European legislation tailored to capture addictive design or specific features such as virtual items or in-app currencies. It further finds that the existing legal framework is not sufficiently clear or effective in addressing the multifaceted harms resulting from interface designs and functionalities that induce digital addiction, which impairs consumer decision-making and puts vulnerable consumers, in particular minors, at a heightened risk. This finding is a common trope within the Digital Fairness Fitness Check report: The EC seems to generally mistrust the application of more general provisions to new phenomena because it does not consider their application by different courts in 27 different member states sufficiently predictable. This assessment is not shared by all stakeholders, given that a more fragmented, piecemeal regulation arguably comes with its own disadvantages and is less adaptable to change and new developments.
IV. Taking action: Potential countermeasures
Based on the report, it seems likely that the EC will not only continue to monitor the developments but also propose new provisions to the existing legal framework. Since the report has identified the lack of sufficiently specific provisions as a source of legal uncertainty, a proposal might entail very specific legal guidelines to assess the admissibility of specific designs and gaming functions. A potential future Digital Fairness Act could – for example – expand on the suggestions provided in the UCPD and CRD Guidances. Additionally, the report outlines the expansion of the blacklist of the UCPD as an option to address addictive design.
Against this background, stakeholders are well advised to closely monitor further developments and consider responding to the upcoming consultation on the Digital Fairness Act that is expected to come in Q1 2025, whilst at the same time continuing to assess, whether certain features of digital products and services offered are in compliance with the existing legal framework.
From ‘Addictive Design and Gaming’ to ‘Personalisation’: Stay tuned for the next instalment of our blog series!
