On 17 July 2025, the European Commission published its much anticipated public consultation to prepare a new legislative initiative that is expected to be published in Q3 2026, dubbed the Digital Fairness Act (DFA).
The rationale for a DFA stems from initial work carried out by the European Commission’s Justice department (DG JUST) in October 2024, culminating in a Digital Fairness Fitness Check (see Freshfields blog here). The Fitness Check report concluded that while EU consumer rules remain effective and relevant, there is also progress to be made to respond to new online practices.
The public consultation that has been released and that runs until 09 October 2025, is set to provide the European Commission with the necessary input to prepare its legislative proposal – for now it remains unclear if the DFA would take the form of a Directive or a Regulation. The feedback collected from the consultation will contribute to the impact assessment, seeking to ensure that the initiative reflects real-world challenges and trends as well as stakeholder concerns. A number of other engagements between the European Commission and stakeholders is envisaged. Targeted surveys and interviews are expected to form part of the evidence base for the new proposal in the shape of a supporting study (to be prepared by external advisers).
In addition, the Commission may prepare additional ‘Implementation Dialogues’ to test the positions of stakeholders on particular existing frameworks such as the Unfair Commercial Practices Directive (UCPD), the Consumer Rights Directive (CRD) and the Unfair Contract Terms Directive (UCTD). On 15 July 2025, the first of such dialogues on consumer law took place covering consumer protection in the digital environment with Michael McGrath, Commissioner for Democracy, Justice, the Rule of Law and Consumer Protection. The dialogue was attended by approximately 25 organisations ranging from consumer groups, trade associations, national authorities and individual companies. Implementation dialogues are one of the tools in the European Commission’s new approach to make EU laws and policies simpler and to implement them better.
What can we learn from the public consultation
In addition to the areas that were clearly outlined in the Digital Fairness Fitness Check and which have been the subject of extended discussion already, the consultation makes clear the very particular emphasis on the safety of minors which has become a growing area of concern over the recent months and weeks. The Danish Presidency of the Council of the EU that will run until the end of 2025 has announced that it is prioritizing the protection of minors, particularly online. This includes efforts to ensure the robust enforcement of the Digital Services Act, implementing new age verification rules, and addressing addictive online design. The Presidency is also looking at amendments to the GDPR to further strengthen data protection, especially for children.
The growing emphasis on this area of consumer protection is also reflected in recent efforts undertaken by the French government to ban minors under the age of fifteen from Social Media platforms. French President Emmanuel Macron recently pushed for a swift implementation of such ban on Union level, stating that his government would be willing to introduce stricter regulation in national law as quickly as possible, if the legislative process on Union level would not be forthcoming.
Notably, the consultation is more detailed than expected on potential actions in the area of influencer marketing, highlighting concerns that have been less commented on so far in the debate such as the advertisement of unhealthy food or the need for disclosures when an image has been retouched with body shape/size/skin having been changed.
As pertains to advertising of unhealthy food, there is only fragmented national regulation. One example for national legislation specifically regulating unhealthy food is the Norwegian law banning targeted advertising to children of specific food categories considered unhealthy, which entered into force on 25 April 2025 (see government statement here). On Union level, the Audiovisual Media Services Directive prohibits broadcast advertising for certain products detrimental to health, especially if such advertising is aimed specifically at minors. This Directive is neighboured by Regulation (EC) No 1924/2006 on nutrition and health claims made on foods and Regulation (EU) No 1169/2011 on the provision of food information to consumers, which both aim to ensure that nutrition and health claims are transparent. Nevertheless, the prominence of such claims made via influencer marketing in the consultation indicates that the Commission does not consider the existing legislation sufficient to ensure a high standard of consumer protection in the digital space.
While the need for disclosure obligations regarding influencer marketing using retouched images is an area which most regulators have left untouched so far, this topic has been addressed by the French legislator in Article L2133-2 of the French Public Health Code. The provision obliges advertisers making commercial use of photographs of models, whose body appearance has been modified by image processing software in order to refine or thicken the model's silhouette must be accompanied by the words: "Retouched photograph". Similarly, the Norwegian Marketing Act requires advertisers to label advertising in which a person’s body shape, size, or skin has been altered through retouching or other manipulation. The added emphasis to such regulation in the consultation could hint towards potential similar regulation being introduced in the DFA. Especially, since the current Union level consumer protection law does not provide specific disclosure requirements concerning such practices.
What other areas does the public consultation seek feedback on
The Digital Fairness Fitness Check findings have pointed to a number of potential gaps in consumer protection and areas of legal uncertainty. In particular, the Commission argues that consumers are too often exposed to practices such as deceptive or manipulative interface design (dark patterns), addictive features, unfair personalisation practices that exploit consumers’ vulnerabilities, misleading marketing by online influencers, as well as difficulties in managing digital contracts. The Commission strongly believes that existing largely principle-based rules do not provide sufficient legal certainty for businesses or authorities and therefore clarifications via a new legislative instrument are warranted.
In addition, the DFA public consultation indicates that the new legislative instrument would also provide an opportunity for streamlining and simplification – two major goals of this 2024-2029 Commission mandate. It is expected therefore that the impact assessment to the DFA could investigate how to ensure a level playing field for businesses, reduce market fragmentation and legal uncertainty and make enforcement easier. It could also assess simplification measures, such as regarding certain consumer information requirements in repetitive transactions with the same trader (e.g. in-app purchases) and the consumer’s right of withdrawal in respect of certain subscription services. The impact assessment will also consider how digital tools such as the EU Digital Identity and European Business Wallets that support secure and transparent digital interactions could facilitate implementation. The public consultation seeks views on all these aspects.
Likely impact
Industry active across sectors whether in gaming, social media, streaming and others will need to pay close attention as to how this workstream evolves to ensure a workable and coherent regulatory framework can be applied that will deliver the consumer protections EU policymakers and decision makers are striving for.
The feedback received to this consultation exercise will provide the first opportunity to assess the reactions from all types of stakeholders as to the desired direction of the future DFA, and will also provide signals as to the viability of the project from a political perspective. New legislation affecting the digital ecosystem will not come without pushback from some parts of the industry with arguments favouring competitiveness and simplification likely to come to the fore.
See below Freshfields thought leadership on the Digital Fairness Act
- See Freshfields blog on dark patterns here.
- See Freshfields blog on addictive design here.
- See Freshfields blog on gaming here.
- See Freshfields blog on personalisation here.
- See Freshfields blog on influencers here.
- See Freshfields blog on digital contracts here.