In recent years, the topic of consumer vulnerability has come to the fore in the context of the digitalisation of the economy insofar as it can be seen as a symptom of, and embodying the various asymmetries that characterise digital markets (see e.g., BEUC, 2022). One of the many features of the digital economy is to make use of the digitalisation of marketplaces in order to render consumers more susceptible to products and services, i.e., to persuade and in some cases straightforward manipulate them (Helberger et al, 2002, p. 176-177). By allowing for pervasive tracking techniques (through their data-driven nature) digital marketplaces have enabled traders to create new knowledge on how to persuade and manipulate consumers to purchase their services and products thus leading to important power asymmetries in consumer-seller relations. Further these insights have also been translated at the very infrastructural level by adapting the design of interfaces and the very choice architecture on this basis (Helberger et al, 2002, p. 186-190).
By adopting a reversed interpretation of consumer vulnerability putting the emphasis on extrinsic factors such as the aforementioned characteristics of digital markets instead of consumers’ intrinsic properties, digital vulnerability reveals how ‘some market structures and configurations make [consumers] vulnerable, or even worse: exploit their vulnerabilities’(Helberger et al, 2002, p. 182).
For this reason, digital vulnerability has been described as ‘a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces’ (Helberger et al, 2002, p. 176), or alternatively as a ‘universal state of susceptibility to distortion of decision-making under conditions of digital asymmetry’ (BEUC, 2023, p. 5).
In the face of these challenges, calls for reform have been issued under the ‘digital fairness’ monicker, with a focus on directly addressing the properties and characteristics of digital markets that create this state of potential universal vulnerability possible (see, e.g., BEUC, 2023; Micklitz et al., 2024, p. 24). These various calls for digital fairness have resulted with various proposed amendments of the EU consumer acquis. Beyond acknowledging the concept of digital vulnerability itself (see e.g., (BEUC, 2023, p. 5)), there has been some focus on a renewed concept of fair trading practices and traders’ professional diligence (Micklitz et al., 2024, p. 28; BEUC, 2023, p. 8), including the introduction of a concept of fairness by design (BEUC, 2023, p. 4); the addition of more prohibited commercial practices (e.g., dark patterns, see (BEUC, 2023, p. 13)); or the creation of new consumer rights such as the right to constructive optimisation (Micklitz et al., 2024, p. 26)/meaningful personalisation (BEUC, 2023, p. 25). Various of these proposals (including the digital fairness monicker itself) have been taken on board by the European Commission (EC) in its ongoing fitness check of the consumer acquis with regard to digitalisation (European Commission, 2024).
At face value, these proposals for more digital fairness can be seen as embodying a concern for balancing private autonomy and fairness, protecting weaker parties, and thus ensuring some form of social justice (see, e.g., Mattei, 2004, p. 659). At the same time, the EC’s concern for digital fairness seems to vindicate some of the critiques of the original 2004 Manifesto for Social Justice in European Contract Law (‘the Manifesto’) (Mattei, 2004). The latter linked the lack of vision for distributive and social justice at European level to a narrow and functionalist view of the competence of the European Union (EU) rooted in the objective of market building, and therefore underpinned by the following principles: ‘freedom of trade, the protection of a competitive market, and the reduction of market failures’ (Mattei, 2004, p. 666).
The EC consumer law Fitness Check retains these premises (European Commission, 2024). The European Commission frames many of the detrimental consumer issues (e.g., autonomy loss, cognitive burdens and other mental harms) as challenges to collective European welfare because of their ‘detrimental effects on competition, price transparency and trust in the market’ (European Commission, 2024, p. 30). In fact, the whole Fitness Check seems to be predicated upon the concern that advances in digital technologies threaten to reduce ‘consumer trust and limit the effectiveness of the current rules in the digital environment’ (European Commission, 2024, p. 1).
From this perspective, the potential of the digital vulnerable consumer and the coextensive calls for digital fairness seem rather limited. Even if they are a well meant response to unacceptable digital market practices, this does not change the fact that such response is framed within an undisputed conceptual milieu of economic efficiency. Rebalancing consumer-trader relations in a context of digital asymmetry might alleviate some unacceptable encroachments upon consumer autonomy and decisional ability, but what type of -distributive- justice is to be achieved with more autonomy in an unchanged economical paradigm of efficiency-based welfare? Rather than being emancipatory, the concept of digital vulnerability seems to further entrench existing market structures.
Beyond the fact that concepts of digital vulnerability and fairness might simply serve to entrench the current situation rather than overcome it, it also does very little to address our current predicament. Whereas the situation prevailing during the original Manifesto could be described as characterised by an -institutional- blissful belief in a ‘social market economy’ (see, Mattei, 2004, p. 668), and probably best embodied in the work of conservative writer Francis Fukuyama and his concept of end of history (Fukuyama, 1992), the current ecological crisis has shown that the social market economy has not been this ‘unsurpassable horizon’. This crisis has not only highlighted the limits of such a model of socio-political organisation, but has also evidenced the role that law plays therein. This has best been analysed in the work of Capra and Mattei who talk about an extractive dimension of law (Capra & Mattei, 2015, p. x). As they have forcefully argued, the current Western legal system is coextensive to the modernistic revolution (and made possible by the dyad private property-state sovereignty), and is therefore embedded into a logic of extraction (Capra & Mattei, 2015, pp. ix-xi). Capra and Mattei have issued their critique in a context of degraded man-environment relations. But in the context of digital marketplaces another type of extraction is occurring. One that extract values from individuals, which has been dubbed as surveillance (Zuboff, 2019) or cognitive capitalism (Moulier Boutang, 2012), and which has been characterised by extraordinary power shifts towards private actors -so-called ‘Big-Tech’, (see, e.g., (Van Dijk, Nieborg, Poell, 2019; Varoufakis, 2024)).
Whereas the turn towards digital vulnerability and digital fairness seems intent to reign in the excesses of concentrated power in the hands of a few platform monopolies (consistent with the market efficiency rationale meant to ensure competitive markets, see (Mattei, 2004, p. 666)), it does not seem to do much about cognitive capitalism and the extraction of value from subjects. If anything, it seems to encourage it (for a more general critique of the market-enhancing dimension of the EU digital regulatory framework, see Sharon & Gellert, 2023).
Does this mean to say that the concept of digital vulnerability is deprived of any critical and counter-hegemonic potential (see, Mattei & Quarta, 2018, p. x)? In their book on the turning point in private law, Mattei and Quarta advocate for a renewed role of private law, through a commons-based counter-hegemonic reinterpretation of private law (Mattei & Quarta, 2018, p. x), which would be instrumental in achieving ‘a society beyond capital, a society that by producing through praxis and theory an ecological private law is capable of respecting the imperatives of survival’ (see, Mattei & Quarta, 2018, p. xii).
This contribution therefore ends by interrogating whether the digital vulnerable consumer concept can be interpreted in a way that veers away from extractive logics, to instead make room for an ecological perspective on private law -and social justice (see, Mattei & Quarta, 2018, p. 95).
Mattei and Quarta confirm the previous critique by arguing that consumer law is currently rooted in the orthodox canon of economic efficiency and market welfare, which itself relies upon rational individuals seeking to maximise their own utility (see, Mattei & Quarta, 2018, pp. 95 et s.). Under this logic, welfare stems from consumers, who as active and rational market participants, underpin the proper functioning of efficient markets (see, e.g., Helberger et al, 2002, p. 179). An ecological interpretation of contract law, they argue, entails to go beyond the focus on personal autonomy and instead requires ‘a new systemic interpretation of contract law capable of reintroducing contracts into their ecosystem’ (Mattei & Quarta, 2018, p. 109). This in turn entails to take into account ‘situated contracts’ (that is, not a contract as pure abstraction but as part of a milieu producing among others social and environmental externalities) and ‘situated subjects’ (by taking into account the subjects’ motivations, and network of relations and dependencies), as well as the relation between the twos from an ecological, systemic, and symbiotic perspective (Mattei & Quarta, 2018, pp. 109-110, 118-119).
Following these footsteps, one way forward would be to reinterpret the notion of digital vulnerability in the light of critical approaches to orthodox conceptions of rational decision-making. Instead of the neoclassical approach to rational decision-making as utility maximisation, one could build on the work of Gigerenzer who has introduced the concept of ecological rationality as an alternative to rational choice theory (see, e.g., Todd & Gigerenzer, 2012). As Brenncke has tried to conceptualise, such an alternative account of rationality could be used in order to go beyond images of consumers as utility maximiser, thereby disrupting the concept of welfare underpinning the canons of market efficiency (Brenncke, 2022). If such an approach can be useful in creating more situated subjects (Brenncke puts the emphasis on alternatives notions of individual autonomy that could underpin consumer protection law (Brenncke, 2022, pp. 193-197)), it remains to be seen whether it would also enable the taking into account of -situated- contracts into their ecosystem from the advocated systemic, ecological, and generative perspective. And provided this is possible, to what kind of digital vulnerable consumer concept would it lead, and further, what type of starting points would such a renewed concept provide against the extractive nature of the digital economy?
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
2016 Digital contents
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