Vulnerability – a vulnerable idea
In recent years, vulnerability has emerged as one of central concepts in discussions on digital market policy. Its gist is straightforward: while interactions between consumers and firms generate various risks and potential harms, not everyone is equally affected. Certain groups, due to factors such as age, income, or education, are more exposed and may therefore require a greater degree of protection. Hence, vulnerability is neither neutral nor self-evident concept. It involves inherently political choices about who should be protected and how, with no clear-cut or universally accepted boundaries.
The language of vulnerability has become a go-to justification for many aspects of current EU digital regulation. This includes the GDPR, DSA, Data Act, and the new Product Liability Directive – reaching an extreme in the AI Act, which, with 25 mentions in a single piece of legislation, elevates vulnerability to one of the core elements of its political blueprint. Yet for all its prominence, “vulnerability” remains deeply hazy. Its core strength – open-ended and inclusive character – is also its greatest weakness. In a logic where everyone is potentially vulnerable in some way, then the term risks losing conceptual sharpness.
In current policy discourses, the concept of vulnerability is often used as a loose umbrella term that encompasses a broad (and potentially borderless) array of features making consumers susceptible to risks – or, in some cases (such as “digital vulnerability”), focuses primarily on the risks themselves. In this sense, the term is frequently employed as a rhetorical device that alludes to harm but offers little substantive guidance for practical application. Only in certain instances does it convey meaningful normative or political content; even then, its meaning often remains cryptic and lacks full coherence.
Between status and context
Vulnerability has been usually conceptualized along two main lines. The first views it as an inherent trait of certain persons, resulting from age, disability, or education, sometimes also wealth. While this approach is relatively easy to implement – relying on attributes that are easily identifiable and stable over time – it is also somewhat reductionist, as it defines individuals as vulnerable solely based on who they are (their “status”) rather than their position within the broader context of market dynamics. The second vulnerability mode attempts to supplement this limitation by paying more attention to contextual specificities. Under this view, vulnerabilities can be activated by the circumstances of a particular market setting – such as the type of transaction and the typical consumer interests involved. This perspective offers a more nuanced and dynamic account of market disadvantage, but it also introduces complexity and potential ambiguity from a legal standpoint. The most recent development in this relational trend has been the notion of “digital vulnerability”. It seeks to bridge the gap between consumer law and the digital economy and considers individuals as structurally susceptible to harm whenever they engage in online interactions with firms. As a result, the final understanding of consumer vulnerability is shaped in practice at the intersection of both approaches – with contemporary law (not only in the digital domain) partly drifting towards contextual and functional views.
The buzzword effect
As vulnerability becomes a catch-all term, its analytical precision gradually erodes. In many disciplines – ranging from migration and gender studies to humanitarian law – vulnerability has been stretched to cover nearly all forms of disadvantage or harm. This expansive usage has led to conceptual inflation, with the term applied so broadly that it loses its capacity to guide effective policy or legal analysis. Yet, in most cases, there is no accompanying framework to distinguish degrees of vulnerability or to specify which social groups merit special protection and for what reason. Without clearer conceptual boundaries, the label of vulnerability risks causing more harm than good. As critics have observed, the overuse of the term can “dilute perceptions of inequality” and “muddle important distinctions” among different types of social harm and risk. This is likely to be the fate of the unchecked expansion of vulnerability in consumer law – if it is not accompanied by a more precise understanding of its content and limits.
Indeed, in many current discourses on the digital economy, vulnerability functions as a loose umbrella term encompassing the diverse risks individuals face in the digital realm. In this sense, it often serves as a placeholder – a rhetorical device that alludes to harm but offers little substantive guidance for legal interpretation or enforcement. The AI Act offers a salient example: its numerous references to vulnerability are dispersed across varied contexts, with little discernible overarching logic. When the vulnerability concept is employed without a clear analytical or normative purpose, it may easily turn into a semantic trap, losing its meaning and the possible political impact.
Vulnerability as a critique
That said, despite its conceptual ambiguities, consumer vulnerability is not devoid of (potential) meaning. Most importantly, it seeks to reframe consumer protection beyond the classical model rooted in institutional economics, which focuses on information deficits and imbalances in bargaining power. What context-sensitive notions of vulnerability reveal about the consumer economy is, above all, its profound heterogeneity. From this perspective, vulnerability emerges as a universal and intrinsic feature of consumer identity: in market interactions, everyone is to some extent susceptible to harm. While this idea might initially seem self-evident it carries meaningful implications.
In this way, the concept of vulnerability can be understood as inherently critical. It disrupts the conventional logic of consumer law by recognizing the market as a space shaped by broader social needs – that go beyond efficiency or price optimization. In doing so, it lays the foundation for a more inclusive regulatory model, one capable of addressing complex harms and structural inequalities that classical consumer concepts have often overlooked. In this light, consumer vulnerability is not merely a tool for identifying market actors in need of special protection. It also becomes a lens through which to reconsider the fundamental aims and boundaries of consumer regulation.
Vulnerability in the post-consumer world
Such malleability of the vulnerability concept and its capacity to capture new (often incidental) categories of consumer harm is particularly relevant in the evolving post-consumer economy, where traditional models of consumption – centered on the exchange of goods and services for money – are giving way to new forms of commodification. Emotions, social relations, and experiences are now key market drivers, integrated into digital infrastructures and platform ecosystems. In this way, vulnerability may help incorporate emerging forms of user harm and experience, moving beyond the narrow economic focus of classical consumer law. These forms of harm, although difficult to categorize under traditional regulatory models, are increasingly significant and demand targeted legal attention.
By expanding the definition of consumer interest, digital vulnerability serves as a conceptual bridge between consumer protection law, fundamental rights and digital market regulation. This integration facilitates a more unified and comprehensive regulatory approach, ensuring that various forms of harm (including non-economic ones) are not left beyond the regulatory ambit. These include manipulation, privacy violations, discrimination, and exposure to harmful content – harms that often fall outside the scope of traditional consumer law ambit.
So, may vulnerability really matter?
The appeal of vulnerability in consumer law lies in its ethical resonance and adaptive flexibility. It offers the promise of a more humane and responsive regulatory approach, attuned to evolving market risks – most recently in the digital economy. However, these advantages come at a cost. Lacking conceptual and normative precision, the notion of vulnerability risks being overstretched or misapplied, ultimately devolving into a mere slogan.
In its current form, vulnerability presents several inherent limitations as a regulatory instrument in digital market. It is particularly inadequate as a standalone criterion for identifying social groups warranting heightened protection. Its conceptual vagueness invites arbitrary distinctions that lack a solid theoretical foundation and contribute little political value. While its expansive scope suggests that anyone might be vulnerable in some respect, it fails to offer a meaningful framework for distinguishing between different modes or degrees of exposure to market threats.
Despite these shortcomings, the concept of vulnerability – if applied with sufficient conceptual rigor – can still serve as a valuable instrument for digital market policy. To grasp its full potential, however, it is necessary to move beyond viewing vulnerability as a straightforward regulatory tool and instead explore its capacity to as a of the EU digital market:
- Firstly, vulnerability offers a cognitive toolbox for understanding the complexities of market relations that merit regulatory intervention. While conceiving of the market as a space of intersecting vulnerabilities may at first appear to obscure analysis, it also carries considerable potential. A key strength of the vulnerability lens lies in its attention to the heterogeneity of market actors, highlighting that consumers are not a uniform group but differ in characteristics that may make them more or less susceptible to market risks. In this way, vulnerability provides a more flexible and dynamic framework for addressing market inequalities than the traditional consumer–business binary long entrenched in EU law.
- Second, vulnerability holds promise as a tool for a more conscious politicizing methodology in digital market research and policy. The vulnerability discourse moves beyond the classical framing of consumer inferiority, typically rooted in information asymmetries and unequal bargaining power. A broader conception of vulnerability enables the development of policies that better capture the full continuum of user interests in the digital realm. It elevates non-economic concerns – such as autonomy and informational integrity – alongside economic ones. Moreover, it recognizes that individuals engaging with digital platforms are not merely consumers in a transactional sense but also citizens and members of society whose interactions merit holistic protection.
(Photo: Ryan Stone)
