Digital Fairness Act – New Rules of the Game for Digital Products

I. From the Fitness Check to the Reform Proposal

As early as 2022, the European Commission launched the 'Digital Fairness Fitness Check', assessing the suitability of key European consumer law standards — the Unfair Commercial Practices Directive (UCPD), the Consumer Rights Directive and the Standard Contract Terms Directive — for the digital economy. The results were released in October 2024. While the existing regulations were generally deemed viable, the Fitness Check highlighted legal uncertainties and regulatory gaps, particularly concerning dark patterns, addictive design, influencer marketing, personalisation practices, pricing, and subscription traps. The Commission estimates that consumers in the EU suffer harm amounting to approximately 7.9 billion EUR annually as a result (European Commission, Commission Staff Working Document, Fitness Check of EU consumer law on digital fairness, SWD(2024) 230 final, 3 October 2024, p. 9).

Consequently, in addition to the Digital Services Act (DSA) and Digital Markets Act (DMA) (see our blog post from February 5, 2024), which were adopted earlier, the Commission has now presented another reform package on 11 November 2026. This package consists of the draft regulation for the Digital Fairness Act itself, a draft Simplification Directive aimed at amending the Consumer Rights Directive specifically, and the respective accompanying annexes.

In terms of content, the DFA primarily addresses six key problem areas: 

1. the misleading or manipulative design of user interfaces (“dark patterns”), 
2. addictive design of digital products, and 
3. misleading influencer marketing on social media, 
4. unfair personalization practices, particularly where consumers’ vulnerabilities are exploited for commercial purposes,
5. Pricing, tickets, and quality seals 
6. Contracts, subscriptions, and automated systems

II. The Approach: Focus on the Design of Digital Products

The direction of the changes is more noteworthy than their number. The European Commission’s official draft legislation specifically aims to extend European consumer law (as a directly applicable regulation) to the architecture of digital interfaces. The proposal explicitly refers to the design, organization, and operation of online interfaces “including visual, auditory, and other components” (Art. 10(1) DFA). Consequently, product design, user experience and monetisation models will be subject to the law on unfair commercial practices. Due to the broad wording, this applies not only to traditional websites but also to apps, games, and voice-based or immersive interfaces.

1. Dark Patterns: Prohibition of Manipulative Interface Design

Art. 10 DFA prohibits online interfaces that may deceive or manipulate consumers or significantly influence their economic behavior. This general prohibition is supplemented by a new Part III in Annex I, which identifies dark patterns that are always considered unfair, without the need for a case-by-case assessment. These include, among others:

• false or misrepresented information regarding availability and popularity, as well as permanently displayed scarcity notices,
• preselected options that consumers must deselect to avoid additional purchases (“pre-ticked boxes”),
• portraying refusal as a wrong decision (“confirm-shaming”),
• repeatedly pressuring consumers to confirm a decision they have already made (“nagging”),
• misleading or ambiguous wording, such as double negatives,
• price and contract term information displayed less prominently,
• false notifications that feign the need for contact or action, and
• disproportionately cumbersome steps to revoke or change a decision (“click fatigue”).

The list is dynamic: The Commission can supplement or amend it by means of a delegated act (Art. 10(3) DFA). For product development, this means taking into account not only take into account the specific prohibited practices already included on the blacklist, but also the legislature’s overall intent. 

Case law shows that this issue is already subject to judicial review: Manipulative practices can already be challenged under, among other provisions, Sections 3(2) and 4a of the German Unfair Competition Act (UWG) (aggressive commercial practices), Article 25(1) of the Digital Services Act (DSA) (for online platforms), and Article 16e of the Consumer Rights Directive, or, respectively, Art. 246b, § 4(1) of the EGBGB and § 5(6) UWG (for financial services). In its final judgment of February 5, 2025 (Case No. 3 UKl 11/24 e), the Bamberg Higher Regional Court ruled that the promotion of ticket insurance during the ordering process, which included “framing,” “nagging,” and a misleadingly labeled “decline” button violated Art. 25(1), (3) of the German Data Protection Act (DSA) as well as §§ 3(2), 4a(1), sentence 2, no. 3 UWG (see Bamberg Higher Regional Court, judgment of Feb. 5, 2025, 3 UKl 11/24 e, GRUR-RS 2025, 6221; the appeal against denial of leave to appeal filed with the Federal Court of Justice (BGH) under case no. I ZR 56/25 was dismissed; see also the detailed review in our blog post dated August 24, 2026). The blacklist is intended to replace such case-by-case assessments of the listed practices.

In addition, the DFA now intends to extend the ban beyond the platform sector to all types of businesses, including e-commerce websites and digital services that do not rely on the intermediation of content (see COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, AND THE COMMITTEE OF THE REGIONS Consumer Agenda 2030 and Action Plan for Consumers in the Single Market “A New Impulse for Consumer Protection, Competitiveness, and Sustainable Growth,” November 19, 2025, COM/2025/848/final (hereinafter “COM/2025/848/final”)). Online platform operators must continue to monitor both regimes (see also below Section IV.).

2. Addictive Design

The second regulatory area addressed by the European Commission’s proposal is the addictive design of digital products, which can lead users to spend excessive amounts of time or money. The European Parliament has long called for a ban on the most harmful features, such as autoplay and endless scroll (see Detailed session reports from March 12, 2025, C/2025/6063). 

Particular focus is placed on the design of games and platforms:

• Virtual Currencies: Providers must state the equivalent value of in-game items in the currency used to purchase the virtual currency (Art. 14 DFA). For minors, paid virtual currencies are disabled by default and can only be enabled with parental consent.
• Loot boxes: Requirement to provide information about contents and odds of winning, option to disable them for all consumers, and prohibition for minors (Art. 15 DFA).
• Pay-to-win and pay-to-progress: Prohibited for minors (Art. 16 DFA).
• Addictive Design: Providers whose digital products may encourage excessive use must provide consumers with effective tools to disable certain features, namely autoplay and endless content consumption, non-interaction-based push notifications, streaks and mechanics that encourage regular use, as well as features that simulate interpersonal relationships (Art. 17 DFA). The Commission may also expand this list by means of a delegated act.

With regard to minors, the DFA also refers to the parallel proposal, the “EU KIDS Act,” which imposes stricter requirements on social networks, video platforms, online games, and AI companions. Article 17 of the DFA does not apply to these providers with respect to minors. This creates an interweaving of the DFA, the KIDS Act, and the DSA, the demarcation of which will require considerable attention in practice.

The industry fears that some of the provisions, such as the definition of "addictive design," may be too broad and could encompass situations that would be considered permissible customer retention practices in the analog world. This could lead to contradictions with the existing regulatory framework. Furthermore, overly broad prohibitions could also affect, among other things, proven free-to-play business models and loyalty programs, thereby leading to a structural distortion of competition (see Zillmer, “Good Intentions Don’t Make It Right — The Digital Fairness Act and the Limits of What Makes Sense”, MMR 2026, 719, 720).

3. Influencer Marketing: Transparency Requirements Are Being Tightened

The third core topic of the consultation on the DFA is misleading marketing by influencers. The existing rule already is that advertising must be recognizable at first glance. In its landmark “influencer” rulings, the Federal Court of Justice (BGH) clarified that content that provides any monetary value to the influencer must be labeled  (see BGH, judgment of Sept. 9, 2021, I ZR 90/20, GRUR 2021, 1400 – Influencer I; BGH, judgment of Sept. 9, 2021, I ZR 125/20, GRUR 2021, 1414 – Influencer II; BGH, judgment of Sept. 9, 2021, I ZR 126/20, MMR 2021, 892 – Influencer III). Violations of the labelling requirement may also constitute violations of Section 6(1)(1) of the German Digital Services Act, which, as a consumer protection law, may also be enforced by consumer protection associations (see Higher Regional Court of Karlsruhe, judgment of March 3, 2026 – 14 UKl 2/24, MMR 2026, 598, 600, para. 55 – Disclosure Requirement for Influencer Posts).

For the first time, the DFA defines influencer marketing as a business practice (Art. 3 No. 15 DFA) and specifies the disclosure requirement (Art. 11 DFA). Disclosures must be clear, prominent, and unambiguous and use the terms “advertisement” or “commercial collaboration”". On platforms within the scope of the DSA, influencers must use the disclosure function provided by those platforms (Art. 11, paras. 1, 2 DFA). New prohibitions include directly urging minors to make a purchase, presenting products as suitable for minors when they are not, and influencer marketing for products prohibited by Union or national law and dangerous products (Art. 11(3)–(5) DFA). There is some relief regarding supplier identification. Those who do not sell directly to consumers are not required to provide their address (Art. 7(4) DFA).

4. Unfair Personalization and Exploitation of Vulnerability

The DFA addresses unfair personalization practices, especially the commercial exploitation of consumers' vulnerabilities and problematic characteristics on social media, in video games, and in e-commerce (see European Commission, COM/2025/848/final). 

According to the European Commission’s proposal, personalized advertising based on profiling will be prohibited in the future when directed at minors or when special categories of personal data (Art. 9 GDPR) are used (Art. 12 DFA). This prohibition is already in place under the DSA and will be extended by the DFA to include all businesses and advertising service providers. Additionally, price personalization based on profiling is banned if it is likely to harm minors or other vulnerable consumers (Art. 13 DFA). According to the recitals, objectively justified differentiations, such as student discounts or evidence-based insurance rates, will remain unaffected.

5. Pricing, Tickets, and Quality Seals

The blacklist in Annex I is being expanded and simultaneously consolidates the amendments to the “Empowering Consumers” Directive (EU) 2024/825. The following are likely to be particularly relevant in practice:

• Drip pricing: The price quoted first must include all foreseeable, unavoidable fees and charges (Annex I, No. 12).
• Price comparisons: Price reductions indicated as a percentage or with a strikethrough price will only be permitted if the reference price is a current price from a clearly identified competitor (Annex I, No. 11). This would effectively rule out comparisons based on suggested retail prices. The interaction with the provisions of the Price Indication Regulation regarding price reductions will need to be clarified.
• Event Tickets and Queues: For dynamic pricing, the number of available tickets at the advertised price and the maximum price must be stated (Art. 18 DFA); in virtual queues, the current price, price variability, and maximum price must be displayed in real time (Art. 19 DFA). A general ban on resale for profit did not make it into the proposal.
• Environmental and sustainability advertising, reviews, product lifespan: The “blacklist” includes bans on blanket environmental claims, compensation-based climate neutrality claims, and uncertified sustainability labels, as well as rules regarding consumer reviews and planned obsolescence (see Annex I, Nos. 6, 7, and 8).

6. Contracts, Subscriptions, and Automated Systems

With regard to online contracts, subscriptions, and automated systems, the practical implications under the current draft are likely to be particularly significant:

• Free trial periods: A reminder must be provided before expiration, and the consumer must give explicit consent to continue the service for a fee; in the absence of such consent, the consumer is not bound (Art. 20 DFA).
• Automatic renewal: Obligation to provide a reminder prior to the renewal of long-term and shorter-term contracts (Art. 21, 22 DFA). In the case of contracts renewed indefinitely, the consumer may terminate the contract at any time with a notice period of no more than one month.
• Termination and withdrawal functions: Mandatory, clearly labeled (e.g., “Confirm contract termination” or similar) and including a confirmation step as well as an acknowledgment of receipt (Art. 23, 24 DFA). The “termination button” familiar from Germany would thus be harmonized with European standards and, as far as can be seen, have a broader scope of application.
• Human Contact Person: Anyone offering online customer service must, upon request and if other means are ineffective, provide a human contact person (Art. 25 DFA).
• AI Agents: Consumers must be able to specify at the outset whether they wish to confirm every contract, certain contracts (for example, up to a maximum price), or none at all; payments or conflicts of interest on the part of the system operator must be disclosed. Providers may not force consumers to use automated systems (Art. 26, 27 DFA).

The provisions in Chapter III on digital fairness are safeguarded by an anti-circumvention clause, which covers any conduct that undermines effective compliance with the obligations, including through behavioral techniques or interface design (Art. 29 DFA).

III. Classification Under the German Unfair Competition Act: The DFA as a Complement, Not a Reinvention

Much of what the DFA intends to codify may already be prohibited under existing law, depending on the specific case. While the German Unfair Competition Act (UWG) does not use the term “dark patterns”, it can address their manifestations through, for example, § 5(1) UWG (misleading practices), § 5a(4) UWG (concealment of commercial intent), and, above all, § 4a(1), sentence 2, no. 3 UWG (unlawful influence through the exploitation of a position of power vis-à-vis consumers to significantly impair their decision-making process). In the aforementioned decision, for instance, the Bamberg Higher Regional Court classified countdown and scarcity tactics in ticket sales as aggressive commercial practices under §§ 3, 4a UWG — by reference to Art. 25 of the DSA — and granted a consumer protection association a right to injunctive relief (see Bamberg Higher Regional Court, GRUR-RS 2025, 6221, para. 23–27). The court directly applied the DSA’s findings to the UWG. A violation of Art. 25(1), (3) DSA is deemed unfair, constituting a breach of the duty of care owed by businesses within the meaning of § 3(2) UWG (see OLG Bamberg GRUR-RS 2025, 6221, paras. 23–27). 

The European Court of Justice (ECJ) also clarified in the “Compass Banca” case (Judgment of Nov. 14, 2024, C-646/22) that the definition of the “typical consumer” does not preclude the possibility that a person’s decision-making capacity may be impaired by limitations such as cognitive biases, thereby providing a clear basis for addressing behavioral economic manipulation (see Rott, “Dark Patterns, the Digital Services Act, and Unfair Competition Law,” VuR 2025, 216, 217).

Nevertheless, gaps in protection remain: The UWG covers only market-related impairments to decision-making freedom. Dark patterns without a sufficient market-related connection fall outside its scope of application (see Guillaume, “Dark Patterns as a Dogmatic Challenge to (Fair Trading) Law,” EuZW 2026, 822, 823). And the relationship between the DSA and fair trading law is unclear: Article 25(2) of the DSA exempts practices that fall within the scope of the Unfair Commercial Practices Directive (UCPD) or the GDPR from the DSA’s prohibition, which raises significant demarcation issues in practice (see Rott, “Dark Patterns, the Digital Services Act, and Unfair Commercial Practices Law,” VuR 2025, 216, 217). The Commission’s Fitness Check has therefore recommended expanding the prohibited practices under the UCPD and clarifying the relationship between the DSA and the UCPD. This is precisely where the European Commission’s DFA proposal comes in. However, critics point out that this carries the risk of double regulation (see Hentsch/Rodenhausen, “Games and the Digital Fairness Act,” MMR 2026, 721, 722).

IV. Who Is Subject to the DFA?

According to the draft, the scope of the DFA is broad and generally covers any natural or legal person who engages in digital transactions with consumers (B2C) in the course of their commercial, business, craft, or professional activities.

The term “trader” (Art. 3 No. 2 DFA) encompasses any natural or legal person acting for commercial purposes, as well as anyone acting on their behalf or at their direction. Thus, the DFA applies to a wide range of market participants along the digital value chain, including:

• Influencers and content creators acting as independent entrepreneurs, even if they do not sell products themselves.
• Brands and agencies that use influencer marketing. They must ensure, either contractually or, if no contract exists, by other appropriate means, that the influencer complies with the requirements (Art. 11(6) DFA). Outsourcing this responsibility is not permitted. This goes beyond previous case law on liability and responsibility under the UWG.
• Advertising service providers: According to the recitals, the prohibitions on personalized advertising are also intended to apply to providers of advertising services who select targeting criteria, provide data, or serve ads.
• Platform and marketplace operators, as well as operators of search functions, for whom additional transparency obligations (such as regarding ranking parameters and merchant status) apply. The relationship to the DSA is governed by Art. 4 DFA: Specific provisions take precedence; Art. 12 DFA does not apply to online platforms subject to the DSA.
• Providers of automated contract systems, who have their own obligations regarding the disclosure of conflicts of interest and the ability to customize parameters.
• Providers not established in the EU, to the extent that they target consumers in the EU.
• Software suppliers and service providers: If a business operator is held liable, it may, pursuant to Article 36 of the DFA, seek recourse against contractual partners who contributed to the violation. This underscores the importance of careful contractual drafting in relationships with agencies, UX service providers, and tool providers (but not in the case of free open-source software).

For B2B relationships, however, the UWG still applies, with the result that different standards may apply to the same design depending on whether the offer is directed at consumers or other market participants. Those who target both consumers and businesses should already be assessing whether separate interfaces or a uniform, stricter design makes more sense.

IV. Implications for Practice: What Clients Should Do Now

Although the DFA has not yet taken effect, the direction of the regulation is clear, and the enforcement practices of courts and consumer associations are moving toward full harmonization. 

We therefore recommend that e-commerce companies, digital platform operators, app/game developers, and digital marketing professionals not wait to take action. Those developing new products, interfaces, or subscription models today should design them with the post-DFA era in mind. In light of the draft regulation, we believe the following points are particularly relevant:

• Identification: Companies should assess whether and to what extent they might be affected by the DFA. The regulation explicitly applies not only to platforms as defined by the DSA but to all types of businesses. In practice, this primarily affects companies with digital customer contact.
• Design Audit: Existing user interfaces, ordering and cancellation processes, and consent banners should be reviewed based on the list of dark patterns in Annex I, Part III, and the obligations set forth in Articles 10 and 17. Many of these practices are already subject to challenge under the current Unfair Competition Act (UWG); however, the blacklist deprives companies of the ability to invoke a case-by-case assessment. In light of Article 34 of the Data Protection Act (DFA), it is also recommended to maintain transparent documentation of design decisions and their impact on user behavior.
• Personalization and Pricing: Algorithms used to personalize content, recommendations, and prices should be documented and, in particular, reviewed for exploitation of vulnerability (age, financial situation, addictive behavior).
• Influencer Contracts: Contracts with influencers and agencies should include clear labeling requirements (“Advertisement”/“Promotion”, even when products are provided without monetary payment), indemnification provisions, and training requirements. Even without a contract (e.g., when products are sent), appropriate measures are required under Article 11(6) of the DFA.
• Contract and Termination Provisions: Free-trial conversion, reminders, cancellation options, and customer service should be structured so that both signing up and canceling are equally straightforward. Significant adjustments are to be expected here, which will require technical lead time.
• Supply Chain: Contracts with agencies, tool providers, and platform providers should include provisions regarding DFA compliance and recourse.
• Monitoring: The legislative process is dynamic; companies should keep a close eye on the trilogue between the Commission, Parliament, and Council, as well as the Commission’s guidelines for implementation, in order to identify adaptation paths and transition periods early on. Given the sometimes unclear scope of the terms, case law will also be needed to ensure legal certainty.

V. Conclusion: Greater Fairness for Consumers - More Requirements for Businesses

According to the current proposal, the Digital Fairness Act provides for another comprehensive set of regulations for the digital economy, with a primary focus on product design. The DFA extends the protection standards established by the DSA for platforms to digital customer relationships across the entire B2C sector. Much of this is already prohibited under German unfair competition law, but the DFA provides clarity and EU-wide uniformity. Presumably, it will also provide stricter sanctions and enforcement mechanisms. Companies in the digital commerce sector should take this opportunity to review their interfaces, personalization models, and marketing practices for “digital fairness” now. We would be happy to advise you on this, from designing legally compliant user interfaces to reviewing your influencer contracts and strategically integrating the DFA into your compliance structure.