Consumer Vulnerability, Digital Fairness, and the European Rules on Unfair Contract Terms: What Can Be Learnt from the Case Law Against TikTok and Meta?

Abstract

Directive 1993/13/EEC on unfair contract terms (UCTD) is one of the oldest pieces of European consumer legislation, formulated before the development of the Internet as the leading marketplace, and still in force, with no major changes since its adoption. As the most significant piece of consumer legislation not substantially amended following the consumer law Fitness Check that resulted in the adoption of Directive 2019/2161/EU, it is questionable whether the UCTD remains fit for purpose in regulating the terms and conditions in the user agreements and policies of social media platforms to address the existence of the social platform related digital vulnerabilities of consumers. This paper assesses the potential and limits of data-based reforms to the UCTD, in procedural notification requirements and substantive unfair terms controls, before demonstrating how the UCTD could be brought up-to-date while preserving commercial certainty and avoiding dramatic changes. This could be done simply by mandating measures that are already being taken, either by social media platforms themselves or by other major tech companies, and by elaborating existing requirements with standards that are analogous to other already-existing consumer rights. The assessment of the real unfair-terms problems highlighted by regulatory actions around the world against two major traders, TikTok and Meta (including Facebook and WhatsApp), may illustrate well the inadequacies in the minimum protections currently afforded by the UCTD.