Consumer Protection in the Age of Personalised Marketing: Is EU Law Future-proof?

Table of Contents: I. Introduction. – II. Personalised marketing and its potential to exploit consumer vulnerabilities. – II.1. Personalised marketing. – II.2. Potential to exploit consumer vulnerabilities. – III. Consumer protection against personalised marketing: shortcomings of the current EU legal framework. – III.1. The Unfair Commercial Practices Directive. – III.2. Three main obstacles in effectively protecting consumers. – IV. Recent legislative changes and proposals: only a partial solution. – IV.1. Introduction. – IV.2. Modernisation Directive. – IV.3. Digital Services Act. – IV.4. Artificial Intelligence Act. – IV.5. Conclusion. – V. Research and policy agenda: towards future-proof marketing law. – V.1. An overall redesign of EU marketing law. – V.2. Research and policy agenda. – VI. Conclusion.

Abstract: While companies used to advertise primarily via mass media, marketing (in particular online) is becoming increasingly personalised. Personalised marketing offers benefits to consumers, but can also exploit their vulnerabilities. For example, personalised marketing enables companies to specifically target psychological weaknesses in consumers. This threatens their autonomy and increases the power asymmetry between companies and consumers. EU marketing law, and in particular the Unfair Commercial Practices Directive, aims at protecting consumers against economic harm by reducing power asymmetries between companies and consumers. This Article will discuss to what extent EU marketing law is future-proof in terms of its fitness to effectively protect consumers against personalised marketing techniques. It will be argued that the law is currently unfit to effectively protect consumers, and that recent legislative changes and proposals only address this problem to a limited extent. It is argued that a “quick fix” to make EU marketing law future-proof is not available, and that an overall redesign of EU marketing law is necessary to protect consumers against the personalised marketing techniques of today and tomorrow.

Keywords: EU marketing law – personalised marketing – consumer protection – consumer vulnerability – Unfair Commercial Practices Directive – future-proofing.

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European Papers, Vol. 8, 2023, No 2, pp. 631-646
ISSN 2499-8249 - doi: 10.15166/2499-8249/679

* Associate professor, Utrecht University, b.b.duivenvoorde@uu.nl.