A view from Brussels: Final countdown to the Digital Fairness Act has started

We may be two weeks away from yet another consequential EU legislative proposal. The Digital Fairness Act, expected 11 Nov., could shake up digital governance for many organizations across sectors. 

Commissioner Michael McGrath is expected to formally introduce the DFA to the European Commission College, which he previously called "the missing piece of the puzzle in the EU's digital rulebook."

The DFA was laid out in the early days of this Commission's mandate to address legislative gaps concerning consumer rights and protection online. In short, its goal is to clarify what is and isn't allowed online. The four core issues were originally expected to be dark patterns, influencer marketing, addictive design and problematic personalization exploiting consumer vulnerabilities. 

McGrath's latest statements confirm the DFA will address additional issues that have emerged since then, for example, unfair ticketing for live events. 

Last year, the Commission ran a public consultation that garnered over 4,300 responses. More than 90% were submissions from citizens, suggesting grassroot movements took off efficiently. Some submissions called for the DFA to address what are seen as unfair or unclear contractual terms between consumers and video game companies, others demanding stronger accountability and transparency from online platforms across the board.  

The DFA proposal will be fiercely negotiated, starting perhaps with the complex and impactful procedural question: which committee will take the lead in the European Parliament? Given its focus, inception and breadth, the DFA journey may start with a competency debate. 

The Committee on the Internal Market and Consumer Protection owns the consumer protection agenda and may naturally get the lead; the Committee on Civil Liberties, Justice and Home Affairs may argue shared competence on some aspects that touch on discriminatory practices, fundamental rights and privacy.

Down the road, there will be many contentious areas, one of which will be definitions. At present, there are no common definitions for some of the consequential concepts the DFA is meant to address. 

One example is the notion of "vulnerability." Concerns are already emerging that if this term is defined too narrowly, the DFA could create friction in the marketplace for companies that serve these populations, such as the elderly or disabled. 

Another contentious area is that of "dark patterns." The concept was first introduced in the 2005 Unfair Commercial Practices Directive, modified in 2026, which refers to "misleading commercial practices." The Digital Services Act, adopted in 2022, prohibits dark patterns as "practices that materially distort or impair, either on purpose or in effect, the ability of recipients of the service to make autonomous and informed choices or decisions." Several other laws refer to dark patterns, including discreet yet consequential ones such as the 2024 regulation on the transparency and targeting of political advertising. 

The DFA has been more than two years in the making. Despite a Brussels' ambition to streamline the EU digital rulebook, the DFA could be a complexifying factor for many organizations. 

First, many of the areas it is set to address are already covered by existing rules, be it the Artificial Intelligence Act, the Digital Services Act, or the horizontal 2011 Consumer Rights Directive.

Second, the current picture is also evolving. The DFA will be negotiated in parallel to the recent EU Kids Act proposal on online protection for minors; minors will logically cross with the "consumer vulnerabilities" categories the DFA seeks to address. 

Ensuring consistency with other laws will be a massively important priority for the co-legislators.