Creating a Fair and Accountable Digital Landscape: The Digital Services Act So Far and What the Future Digital Fairness Act Could Bring

As digital experiences become increasingly central to our lives, the EU is leading the charge toward a fairer, more transparent digital environment. With the Digital Services Act (DSA) now actively reshaping online spaces and the upcoming Digital Fairness Act (DFA) set to tackle dark patterns and addictive features, these legislative efforts signal a major shift toward a more accountable digital world. Together with the European Commission’s Fitness Check on Digital Fairness released on October 3, these legislative efforts aim to protect user rights, promote transparency, and foster an online ecosystem where individuals are empowered to make informed choices—free from manipulation or deception. Let’s explore how the DSA is impacting the digital landscape today, what the DFA promises for the future, and what are the main learnings from the Fitness Check on Digital Fairness.

The Digital Services Act, 6 months later: where do we stand?

As we mark six months since the Digital Services Act (DSA) came into effect in February 2024, let’s take a moment to assess its impact on the digital landscape in the EU and beyond. The DSA represents a significant shift in how online platforms operate, aiming to create a safer and more accountable online environment. Here’s where we stand as of October 2024:

📈 Implementation Progress

Since its rollout, the DSA has prompted a wave of compliance efforts among digital service providers. Many companies, particularly Very Large Online Platforms (VLOPs), have been urged to adapt their practices in line with the new regulations. The initial phase has focused on transparency, content moderation, and user empowerment, with platforms now required to provide clearer information about their advertising practices and algorithmic recommendations.

One of the DSA's primary goals is to enhance user empowerment, and we’re starting to see results. Users now have more straightforward channels to report illegal content. This shift aims to create a more user-friendly environment, encouraging consumers to take an active role in their online experiences.

The European Commission has begun establishing the necessary frameworks to monitor compliance. This includes appointing dedicated authorities to oversee the implementation of the DSA and ensuring that platforms adhere to its regulations. Early enforcement actions have already been taken against some companies, underscoring the EU’s commitment to holding digital service providers accountable.

👀 All Eyes On the Gatekeepers

• Meta: On April 30, 2024, the EU Commission opened formal proceedings against Meta, investigating potential breaches of the Digital Services Act (DSA) concerning deceptive advertising practices and the management of political content on Facebook and Instagram. The Commission's scrutiny focuses on Meta's compliance with DSA obligations related to disinformation, visibility of political content, and the effectiveness of its mechanisms for flagging illegal content. This investigation is critical, as it aims to protect democratic processes.
• TikTok: TikTok has already been the subject of two investigations under the Digital Services Act (DSA). In February 2024, the European Commission opened its first investigation into TikTok under the Digital Services Act (DSA), focusing on potential violations related to user privacy and content moderation standards. The inquiry aimed to assess whether TikTok had sufficiently protected minors and maintained transparency regarding its data practices. Following this initial investigation, TikTok faced a second inquiry in April 2024 concerning its Lite app, which was at risk of suspension due to inadequate compliance with DSA requirements. These investigations highlight the EU's dedication to enforcing strict regulatory standards on digital platforms to promote user protection and accountability.
• Google: The DSA aims to ensure that users receive clear and accurate information regarding how their data is used, particularly concerning consent for data processing and advertising. The Italian Competition Authority is investigating Google over concerns that its consent requests for linking services may be misleading and inadequately inform users about data use. This scrutiny is heightened by Google's recent antitrust loss in the U.S., which underscores the increasing regulatory pressure on tech giants to comply with transparency and accountability standards. These developments come in the wake of the EU's ongoing efforts to strengthen consumer rights, including initiatives under the DSA and the General Data Protection Regulation (GDPR).
• X: In December 2023, the European Commission announced an investigation into X for potentially breaching DSA provisions regarding the platform’s content moderation practices and the dissemination of illegal content. This scrutiny reflects the DSA's objective to create a safer online environment and holds platforms accountable for their role in preventing harmful content. While the DSA became effective in February, its active enforcement phase, including investigations, began prior, as regulatory authorities prepared to uphold its standards.
• Amazon: In February 2024, a class action lawsuit was filed against Amazon, alleging deceptive advertising practices regarding its Prime subscription service. For over a decade, Amazon Prime included ad-free streaming. Customers believed they were purchasing a subscription that guaranteed this. However, in January 2024, Amazon announced a change requiring subscribers to pay an additional $2.99 per month to continue streaming without ads, even for those who had already paid for an annual ad-free subscription. This change is claimed to be unfair, as customers are now expected to pay extra for a feature they initially understood to be included. While the lawsuit does not explicitly reference the DSA, it reflects a growing demand for transparency and accountability in advertising practices, paralleling the DSA's emphasis on consumer rights in the digital marketplace.

It’s clear that the DSA has started positively reshaping the digital landscape. Compliance efforts are driving more transparency, accountability, and user empowerment on major platforms, highlighting the EU’s determination to set a global standard for a safer, fairer online environment. The early fines, investigations, and required adjustments signal a new era of scrutiny and regulation that companies must adapt to, if they are to thrive under the DSA's requirements.

This ongoing transformation underscores the importance of remaining adaptable and proactive as the DSA continues to evolve and expand its influence. For companies operating in the EU and beyond, these regulatory developments provide an opportunity to build trust and demonstrate a genuine commitment to user-centric practices. As we look ahead, the DSA serves as both a call to action and a framework for the future—a future in which digital fairness, transparency, and accountability become core pillars of the online world.

Check out the DSA Transparency Database to keep an eye on future happenings!

Hot off the the press: Digital Fairness Fitness Check

On October 3, the EU Commission published this long-waited report, further to nearly 2 years of assessment of 3 main pieces of EU legislation on consumer protection, to determine whether they still efficiently protect consumers in the digital realm:

• the Unfair Commercial Practices Directive 2005/29/EC
• the Consumer Rights Directive 2011/83/EU
• the Unfair Contract Terms Directive 93/13/EEC

What does it say about #darkpatterns? 💡

✅ A (fairly clear) definition: "Unfair commercial practices deployed through the structure, design or functionalities of digital interfaces or system architecture that can influence consumers to take decisions they would not have taken otherwise"

✅ A clear need to address dark patterns as one of "the most harmful problematic practices"

👾 It's not a new phenomenon, but concerns have intensified about their increased effectiveness and scale (helpful reminder about all the studies measuring their prevalence and effects around the world - we had detailed each of those in #FairMonday posts these past years)

👾 their potential for personalised persuasion based on behavioural data is a significant concern

👾 their prevalence has become much worse than in 2017

👉 sharp increase in regulatory concern around the world: US, UK, South Korea, India, OECD....

👉 a helpful reminder of the main types of harms caused by dark patterns: loss of autonomy and privacy, cognitive burdens, mental harm, lessening of collective welfare due to detrimental effects on competition, price transparency and trust in the market

🤷🏻♀️ As we have highlighted in our research, the Commission confirms the "growing mismatch between the normative abstraction of the ‘average consumer’ and the realities of consumer behaviour in the digital environment" (cf: https://lnkd.in/eHY4S48x and https://lnkd.in/eFsYp64M)

💡Very interestingly, the Commission compares the #cost to consumers when they are fooled online: €7.0 billion in 2023, with the cost of compliance by companies: €511-737M. From a collective welfare perspective, compliance is a no brainer!

👉 What actions should be taken?

✅ The Commission highlights the importance of assessing dark patterns: now is the time to conduct an audit! Good news, our #AIpowered audit tool to find and fix dark patterns is now available

✅ They also stress the key importance of "enabling" consumers to make more meaningful and informed choices in the digital environment - hello Fairpatterns! That's precisely the concept we have developed after 3 years of R&D: interfaces that empower users to make informed and free choices.

Read the full report here: file:///Users/mariepotel/Downloads/090166e512cd10e5.pdf

Looking Ahead: The Digital Fairness Act

In 2022, the EU consumer law initiated a public consultation known as the Fitness Check, aimed at assessing the effectiveness of existing regulations in protecting consumers in the digital landscape. This evaluation focused on issues like dark patterns and unfair contract terms, determining whether current laws adequately safeguard consumers and if additional legislation is necessary. Following this assessment, Ursula von der Leyen's mission letter to Michael McGrath released this September, outlined strategic priorities to enhance consumer protection and promote democratic integrity in the EU.

In it, President Ursula von der Leyen refers to the need to create a Future Digital Fairness Act, “to tackle unethical techniques and commercial practices related to dark patterns, marketing by social media influencers, the addictive design of digital products and online profiling especially when consumer vulnerabilities are exploited for commercial purposes”.

✅ At Fairpatterns, fairness is at the heart of our work. Our R& D lab development over the last three years has focused on defining, studying, and advocating for what we call Digital Fairness: a world where everyone, regardless of background or vulnerabilities, can make free and informed choices online.

What is Digital Fairness?

At Fairpatterns we understand digital fairness as the assurance that users can make their own free, informed choices without manipulation or deception. In a fair digital space, users retain autonomy, where "choice architecture" isn’t set up to steer or manipulate but rather to respect individual agency. This doesn’t mean everyone should make the same choices – it means everyone should have the agency to make the right choices for themselves.

In a world where "if it’s free, you’re the product" has often held true, we believe that Digital Fairness is about changing the equation: users are not the product but are empowered participants making informed decisions based on their own needs and preferences.

Why It Matters

For the past three years, our R&D lab has invested significant resources in researching the intricacies of digital choice and autonomy. We've analyzed hundreds of scientific studies on dark patterns—the techniques used to nudge, manipulate, or even trick users into making choices they wouldn’t freely make. However, the concept of Digital Fairness goes beyond countering dark patterns; it’s about fostering genuine autonomy and agency online.

When we created Fairpatterns, our vision was distinct: to differentiate from both "dark" and so-called "bright" patterns, which attempt to steer users toward consumer-friendly or privacy-friendly options through nudges. We took a strong stance against nudging, because true empowerment requires the tools and knowledge for users to make choices for themselves—not choices predetermined by a paternalistic approach. When nudging happens online, people lose out on valuable opportunities to understand and make decisions on their terms.

A Commitment to True User Empowerment

At Fairpatterns, we don’t believe in nudging as a digital design tool. Nudging implies someone else knows what’s best for you, a paternalistic mindset that undermines true autonomy. Our aim is to empower users to make informed decisions—even if they might seem counterintuitive or imperfect from a specific perspective. This is especially critical given the diversity of digital landscapes worldwide. In essence, we are pushing against a future of “blind signing” where users simply follow nudges without understanding the implications of their choices.

Through our commitment to transparent, user-focused design, we aim to build digital environments where you are empowered to understand the implications of your choices, from cookie settings to data sharing.

In an ever-evolving digital space, true fairness doesn’t mean guiding choices. It means giving people the power to choose. That’s what Digital Fairness means to us.

The highlights of this month!

• The Nudge Theory: how the choices you make are guided by unseen forces: https://www.linkedin.com/feed/update/urn:li:activity:7237791719373623301
• The California Privacy Protection Agency is coming after Dark Patterns https://www.linkedin.com/feed/update/urn:li:activity:7242115636473049089
• Comparing Shakespeare to Complex Privacy Policies, Which Would You Prefer? https://www.linkedin.com/feed/update/urn:li:activity:7244688732509941760

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Want to know more?

You can find all of our news updated on our site www.fairpatterns.com and listen our podcast with some amazing voices helping framing #darkpatterns through different lenses.

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