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Explained
Created on:
18 Jul 2025
Last updated:
23 Oct 2025
European Commission seeks input to inform their work on the upcoming Digital Fairness Act
TL;DR:
The long-awaited consultation ahead of the Digital Fairness Act has been published, with 9 sections of questions relating to different aspects of consumer protection in the digital marketplace. As expected, it draws on the 2024 Digital Fairness Fitness Check.
'Call for evidence on the Digital Fairness Act'
This is your opportunity to tell the European Commission your thoughts on the themes covered by the scope of the upcoming Digital Fairness Act. Feedback is open to everyone – from members of the public and consumer associations to trade bodies and video games companies. It’s open until 9thOctober, so you’ve got plenty of time to consider your position (although, much like homework, we don’t recommend leaving it until the night before the deadline).
If you’re interested in understanding what the issues raised could mean for you or you want some advice and support with creating a response, we’d be only too happy to help. Drop us a line!
Why is the European Commission consulting?
Last year, the EC published the report of its Digital Fairness Fitness Check, which evaluated whether existing EU consumer protection frameworks were adequate in the digital age. Among the key findings, the Commission concluded that the current principles-based approach doesn’t provide the legal certainty needed by both consumers and businesses to ensure digital fairness, alongside enforcement challenges. The DFA is the vehicle by which they intend to provide clarity and plug any gaps in regulation. However, before they can issue the draft legislation, they need to understand the wider landscape of digital consumer protection, meaning that they are canvassing views across the board. Public feedback like this is used to inform the necessary scope and content and can be especially helpful in establishing a clear evidence base for future policy as well as highlighting any pitfalls to avoid.
What is the EC asking?
The consultation contains 9 sections; aside from Sections 8 and 9, the questions all ask whether further EU action is required for each specific topic and respondents must select pre-filled answers or add their own ‘other’ in free text. Alongside this survey-style consultation, the EC has also opened up a call for evidence, which is an opportunity to submit a longer-form piece of feedback.
For the video games industry, the most pressing issues will be those in Section 3 relating to in-app purchasing and virtual currencies, but the DFA also covers marketing practices more broadly, and specifically includes influencer marketing.
Here’s a breakdown of what topics are covered and how they might impact your activities:
Dark patterns
Ominously-titled ‘dark patterns’ are practices through which consumers are influenced into making different transactional decisions by the way that choices are presented – this includes things like inappropriate use of countdown timers, emphasising/de-emphasising specific options in an interface, or using confusing language. These practices are among the top priorities of the EC and are highly relevant to anyone embedding in-game purchasing, especially when implementing time-limited discounts or complex offers, as it can be easy to stray into this area.
Concerning dark patterns, do you think any new EU actions should be taken to improve the protection of consumers and the functioning of the Single Market?
Addictive design
A familiar concept to the doom-scrollers among us, addictive design practices include ephemeral content, autoplay, infinite scrolling, and penalties for disengaging. While of primary importance for social media, video games companies should consider whether their gameplay is structured in a way that goes beyond the ideal ‘flow state’ and into addictive design.
Concerning addictive design, do you think any new EU actions should be taken to improve the protection of consumers and the functioning of the Single Market?
Specific features in digital products, such as video games
Getting our own section in the call for evidence is… sub-optimal. It’s news to no-one that the EC is looking at loot boxes, in-game currencies, and pay-to-win/progress mechanics. This is, of course, relevant to anyone who monetises using in-game purchasing, and the more complex the model, the more likely you are to be in scope of new regulations.
Concerning specific features in digital products, such as video games, do you think that any new EU actions should be taken to improve the protection of consumers and the harmonisation in the Single Market?
Unfair personalisation practices
This section deals with targeted marketing and the degree to which consumers are comfortable with how their personal data is being used and whether their vulnerabilities are potentially being exploited. Of less relevance to many video games companies, but one to consider if you do a lot of ad targeting.
Concerning unfair personalisation practices, do you think that any new EU actions should be taken to improve the protection of consumers and the functioning of the Single Market?
Harmful practices by social media influencers
Social media influencing is now a cornerstone of online marketing, but the personal nature of this medium means that there are risks to consumers. The EC is looking at issues to do with ‘hidden’ marketing (i.e. influencers not disclosing their brand connection), which will be highly relevant to anyone using influencers, including streamers, as part of their marketing strategy. Interestingly (but hopefully far less relevant), they are also considering the role of influencers in the promotion and sale of potentially harmful products.
Concerning unfair influencer marketing, do you think that any new EU actions should be taken to improve the protection of consumers and the functioning of the Single Market?
Unfair marketing related to pricing
Echoing the recent UK Digital Markets, Competition and Consumers Act (and the CMA’s enforcement of it), the EC are considering a range of pricing practices – this includes drip pricing, reference pricing/reductions, and ‘starting’ prices that are unlikely to be achieved by most buyers. This may be relevant to video games organisations offering discounts on games or subscriptions, or whose pricing structures fluctuate. It’s worth keeping an eye out for whether/how it intersects with issues of in-game purchasing.
Concerning unfair marketing related to pricing, do you think that any new EU actions should be taken to improve the protection of consumers and the functioning of the Single Market?
Issues with digital contracts
Another issue covered by the UK DMCCA, subscription contracts are under the EC’s microscope – they’re looking into concerns about cancellation/renewal, converting free trials into paid subscriptions, and automated contracts. They’re also considering circumstances in which customers have difficulty contacting a real human being when trying to talk to customer services about their contract. Video games companies with subscription models, keep a careful watch on this.
Considering issues with digital contracts, do you think that any new EU actions should be taken to improve the protection of consumers and the functioning of the Single Market?
Simplification measures
This is the dullest-sounding but arguably the most important part of the call for evidence – the degree to which the consumer protection framework could do with simplifying. This applies to everyone who does any form of commercial practice regulated by the EU under consumer protection rules. The EC hopes that the DFA can simplify the regulatory framework in a way that reduces the burdens on businesses without reducing the level of protection afforded to consumers. Their primary focus is information requirements and the right of withdrawal, but they are open to hearing thoughts on other areas. As part of this, the EC is also hoping to provide less fragmentation across member states (the situation where different jurisdictions have conflicting or overlapping laws).
In your view, are there any concrete measures to simplify consumer laws that could reduce the burden for businesses while maintaining the same level of consumer protection? [yes/no]
Do you think certain types of information should be provided to consumers solely in digital form? [yes/no]
In your view, in which of the following areas would EU actions reduce single market fragmentation that may currently exist due to diverging national laws or interpretations by national courts or authorities? [selection of topics 1-7]
Do you have specific suggestions, requests for clarification or concerns with regard to the interaction of cross-cutting EU consumer protection legislation with other existing EU legislation, including the Audiovisual Media Services Directive, the Digital Services Act, the Digital Markets Act, the Artificial Intelligence Act, or the EU Digital Identity Framework? Please be specific and provide evidence to support your views.
Horizontal issues
Effectively, the ‘any other business’ section, respondents can raise anything they think is of relevance that hasn’t been covered in the previous sections. This is an opportunity to highlight potential complementary or conflicting legislation/policy in other connected areas, best practice approaches from other jurisdictions, and reflections on any impact the DFA could have in the EU Single Market.
In addition to the above, do you think that any further EU actions should be taken to improve the protection of consumers and the functioning of the Single Market in the digital environment in a more general way?
Do you have further suggestions for improving consumer protection and enforcement in the digital sphere and contributing to a level playing field for traders in the EU?
Do you have specific suggestions concerning the protection of minors?
Why should video games companies engage with the consultation?
The DFA is undoubtedly going to create huge changes in how digital products and services are regulated, and this includes video games – the potential impacts on some business models could be massive. We already know that in-game purchasing and virtual currencies are under the spotlight, and with targeted advertising and broader marketing strategies also included, everyone has an interest in the outcome. If this legislation is going to work for video game companies and players alike, the full breadth of the industry needs to make its voice heard. With the effects of the DFA being different for each unique business model, it’s vital that there’s wide representation so that any unintended consequences are mitigated.
How can Flux help me?
Whether you just want to keep an eye on developments or jump right into the consultation, we can support you at any level. From advice on the current position of the EC and how the DFA could potentially affect your business, right through to drafting a full consultation or call for evidence response, we’ve got a range of services to suit your needs. If you want to know more about what we can do to support you, just get in touch.
Author: Dr Celia Pontin, Director of Public Policy and Public Affiars