The Digital Fairness Act in depth: dark patterns, influencers, subscriptions

The legal framework

Status of the texts

On 11 November 2026 the European Commission presented its proposal for a Digital Fairness Act. Its full title is a Regulation on promoting fair business-to-consumer commercial practices in the offline and digital single market, and repealing Directive 2005/29/EC. The annexes, the impact assessment and a factsheet are on the Commission's Digital Fairness Act page. It is a proposal: nothing in it binds anyone yet, and the article numbers below may change in the legislative procedure.

Our news items cover the Digital Fairness Act and the Consumer Law Simplification Directive as a package. Here we go deeper into interface design, influencer marketing and online contracts.

Today, these topics fall under three adopted texts:

• the Unfair Commercial Practices Directive 2005/29/EC (UCPD), which Member States had to apply from 12 December 2007 (Article 19);
• the Consumer Rights Directive 2011/83/EU (CRD);
• Directive (EU) 2019/2161, which amended both and whose national rules apply from 28 May 2022 (Article 7).

The proposal would turn the UCPD into a regulation, with direct effect in every Member State, and repeal the directive (Article 38). It would enter into force on the twentieth day after publication and apply 12 months after entry into force (Article 40).

Who would be caught

The regulation applies to business-to-consumer commercial practices before, during and after a transaction (Article 2(1)). An "online interface" is any software, including a website or mobile app, that gives consumers access to products (Article 3(11)). Webshops, apps, game publishers, subscription services, marketplaces, brands and paid influencers are all caught.

Rules in the GDPR, the Digital Markets Act, the Digital Services Act, the AI Act, the Audiovisual Media Services Directive and the planned EU KIDS Act are not affected, and in case of conflict they prevail for the specific aspects they regulate (Article 4). Contract law, such as the rules on the validity of a contract, stays untouched (Article 2(2)).

Dark patterns: Article 10 and Annex I, Part III

Article 10(1) sets the general rule. Traders may not design, organise or operate their online interfaces, including visual and auditory components, in a way that is likely to deceive or manipulate consumers or otherwise materially distort their economic behaviour.

Part III of Annex I then lists ten dark patterns that are unfair in all circumstances (Article 10(2)). For these, no case-by-case test applies:

• 53. False claims about the availability or popularity of a product, or not disclosing relevant qualifications.
• 54. Persistent statements throughout the ordering process about availability or popularity, to create an impression of scarcity.
• 55. Default options the consumer has to reject, or inferring consent to pay for an extra product, a different quantity or a different product.
• 56. Presenting the option to decline a purchase, or to stop a supply, as the wrong choice.
• 57. Creating the false impression that there is no option other than the prominently featured one.
• 58. Persistently asking consumers to make or change a choice they have already made, where the law does not require it.
• 59. Misleading or ambiguous language in choices, including reversed framing or double negatives.
• 60. Showing the price, or the duration and automatic renewal of a contract, with less prominence than other material information.
• 61. Notifications that falsely suggest someone has contacted the consumer or that a matter needs attention.
• 62. Making the steps to refuse, withdraw or change a choice disproportionately more numerous, complex or time-consuming than reasonably necessary.

The Commission may amend this list by delegated act (Article 10(3)), and Article 29 bans conduct, including interface design, that undermines these obligations.

Influencer marketing: Article 11

"Influencer marketing" is a commercial practice in which traders use their popularity among their audience to promote products, directly or indirectly, in exchange for payment (Article 3(15)). Article 11 then sets these rules:

• Each commercial communication must disclose its commercial intent clearly, prominently and unambiguously, with the words "advertisement" or "commercial collaboration" (Article 11(1)).
• On an online platform under the Digital Services Act, the disclosure uses the platform's own functionality for declaring commercial content (Article 11(2)).
• No direct exhortations to minors to buy, no false impression of non-commercial intent (in particular where minors are involved), and no false impression that a product suits minors (Article 11(3)).
• No influencer marketing of products whose advertising to consumers is banned under EU or national law, or of dangerous products (Article 11(4) and (5)).
• Any trader that uses influencer marketing services must ensure, by contract or otherwise, that the influencer complies (Article 11(6)).

Personalisation and spending features: Articles 12 to 17

Articles 12 and 13 limit ads and prices personalised through profiling where the trader knows with reasonable certainty that the consumer is a minor (and, for prices, vulnerable), and ban ad targeting on special categories of personal data. Articles 14 to 17 cover virtual currencies, loot boxes, pay-to-win for minors and a switch to turn off addictive features. Our article on the EU KIDS Act covers the overlap with the rules for minors.

Online contracts: Articles 20 to 27

• Free trials (Article 20). Before a free trial ends, the trader must remind the consumer on a durable medium of the end date, the right to terminate and the price and conditions of the paid contract. If there is no reminder, or the consumer does not expressly agree to continue, the consumer is not bound.
• Long contracts (Article 21). For online contracts of six months or more with automatic extension, a reminder is due no earlier than one month and no later than fourteen days before the extension. Without it, the consumer may terminate free of charge at any time until the reminder is sent. After an extension for an indeterminate period, the consumer may terminate at any time with at most one month's notice.
• Short contracts (Article 22). Under six months, a reminder is due one week before the extension that reaches six months in total or the tenth extension, whichever comes first.
• Termination button (Article 23). Where consumers can conclude contracts online, they must be able to terminate online, however the contract was concluded, through a function labelled "terminate the contract here" and a confirmation labelled "confirm the contract termination". The trader acknowledges receipt within a week.
• Withdrawal button (Article 24). A "withdraw from contract here" function throughout the withdrawal period.
• A human in customer service (Article 25). On request, and when other means are not effective, the consumer can reach a human being after the contract is concluded.
• Automated contracting (Articles 26 and 27). Systems that contract on a consumer's behalf must let the consumer choose at first use to confirm all contracts, some (for example up to a maximum price) or none. Trader and system may identify themselves with a European Business Wallet or a European Digital Identity Wallet (Article 26(5)).

Enforcement: Articles 34 to 36

Courts and authorities can order a trader to disclose evidence on how an online practice was designed, how it operates and how it affects consumers, with regard for trade secrets (Article 34). Failing to disclose can count towards a finding of unfairness. In coordinated actions, the maximum national fine must be at least 4% of annual turnover in the Member States concerned, or at least EUR 2 million absent turnover data (Article 35(3) and (4)). The Commission could fine up to 6% of worldwide annual turnover in cases it investigates under the planned new consumer protection cooperation regulation (Article 35(6)). A trader held liable for an unfair online practice has a right of recourse against a business partner whose act or omission caused or contributed to it (Article 36).

What already applies today

Under the UCPD, hiding the commercial intent of a practice is a misleading omission (Article 7(2)). Annex I already blacklists paid editorial content not clearly marked as such (point 11), false "only for a very limited time" claims (point 7) and direct exhortations to children in advertising (point 28). Directive 2019/2161 added point 11a on paid ranking and points 23b and 23c on consumer reviews, required national fines of at least 4% of annual turnover in coordinated actions, and gave consumers remedies for unfair practices (Article 3). Under the CRD, a trader needs express consent to any extra payment; if consent was inferred from a default option the consumer had to reject, the consumer can get the payment back (Article 22).

In practice

A fashion webshop shows "only 2 left" at every checkout step, whatever the stock. Today that is a risk under the UCPD's general tests. Points 53 and 54 of Annex I would ban it outright.

A meal-kit subscription offers a 14-day free trial that silently converts into a monthly plan. Under Article 20 it would need a reminder with the end date and price, and the consumer's express agreement; without both, there is no paid contract. Its cancellation flow asks three times whether the user is sure before a small "cancel anyway" link. That matches points 56, 58 and 62, and Article 23 would require a labelled termination function.

A cosmetics brand pays creators through an agency, and they post with vague tags. Each post would need "advertisement" or "commercial collaboration" (Article 11(1)), and the brand must secure compliance by contract (Article 11(6)). If the brand is fined, Article 36 lets it turn to the agency or creator at fault. See influencers and the law.

Contracts and practical steps

• Influencer and agency contracts. Add the disclosure wording, a ban on promoting restricted or dangerous products, approval rights before posting, cooperation with authorities and a recourse clause that matches Article 36.
• Design and development contracts. Ask your agency or platform supplier to warrant that interfaces avoid the ten Annex I, Part III patterns. Keep design rationales and A/B test results: under Article 34 a court may ask how a flow works and why.
• Subscription terms. Map every trial, renewal and notice period against Articles 20 to 22, and plan the reminders and the termination and withdrawal functions.

Frequently asked questions

Does the Digital Fairness Act apply today?

No. It is a proposal presented on 11 November 2026. Once adopted, it would apply 12 months after entry into force. Until then the UCPD and the CRD apply through the national laws that transpose them.

Is every stock or popularity message a dark pattern?

No. Points 53 and 54 target false claims, missing qualifications and persistent statements meant to create scarcity. A true, accurate stock count is not on the list, although Article 10(1) still applies its general test.

Who is liable for an influencer's post, the brand or the influencer?

The proposal treats both as traders. The influencer must disclose, and the brand must ensure compliance by contract or other means (Article 11(6)). Each can be held liable, and Article 36 lets a trader that pays a fine seek recourse from the partner who caused it.

How this connects

The interface rules sit next to cookie consent, often on the same screens. We review consumer terms, subscription flows and influencer and agency contracts as part of commercial contracts and transactions, and the profiling questions under Articles 12 and 13 with our DPO as a service. Contract Review checks existing terms clause by clause and Document Studio prepares the updated texts; our own AI does the first pass and an attorney reviews every result.

Cited provisions. Digital Fairness Act proposal: Articles 2, 3(11) and (15), 4, 10 to 29, 34 to 36, 38, 40 and Annex I, Part III. UCPD: Articles 7(2) and 19, Annex I points 7, 11 and 28. Directive (EU) 2019/2161: Articles 3 and 7. CRD: Article 22.

Key dates. 12 December 2007: UCPD applies. 28 May 2022: national rules under Directive 2019/2161 apply. 11 November 2026: Digital Fairness Act proposed. Entry into force 20 days after publication, application 12 months later (Article 40 of the proposal).

Further reading. The Digital Fairness Act (news) · The Consumer Law Simplification Directive (news) · Children online: the KIDS Act proposal and age verification · Platform duties under the DSA · Influencers and the law · Cookies and consent