A Practical Guide to Shaping the EU's Digital Fairness Act: Lessons from EFF

Overview

The European Union is entering a critical enforcement phase of its ambitious digital legislation—the Digital Services Act, Digital Markets Act, and AI Act are now in place. The next frontier is the Digital Fairness Act (DFA), a proposed law targeting widespread manipulative practices such as dark patterns and exploitative personalization. The European Commission's 'Digital Fairness Fitness Check' confirms that existing consumer rules are outdated for today's digital markets. However, some proposed fixes—like age verification mandates—risk expanding surveillance without solving root problems. This guide, based on the Electronic Frontier Foundation's (EFF) recommendations, provides a step-by-step approach to advocate for a rights-respecting DFA that prioritizes privacy and user sovereignty over corporate control.

A Practical Guide to Shaping the EU's Digital Fairness Act: Lessons from EFF — Source: www.eff.org

Prerequisites

Understanding of EU digital policy context: Familiarity with the DSA, DMA, and GDPR basics.
Awareness of common digital harms: Dark patterns, data exploitation, vendor lock-in, coercive contract terms.
Basic advocacy skills: Ability to engage with policymakers, write submissions, or coordinate campaigns.
Optional: Access to EU Commission consultation portals and knowledge of the DFA legislative process.

Step-by-Step Instructions

Step 1: Anchor Advocacy on Two Core Principles

The EFF argues that digital fairness must rest on two interlocking pillars: privacy first and user sovereignty. Recognize that most digital harms stem from surveillance-based business models. Frame your recommendations around these principles and avoid piecemeal fixes that expand platform control over users.

Privacy focus: Demand that any DFA measure reduces reliance on data collection and processing. Oppose mandates that require more tracking (e.g., age verification without privacy safeguards).
User sovereignty focus: Push for clauses that reduce lock-in, ban default settings that steer choices, and limit unilateral contract changes. This is a precondition for European digital sovereignty as a whole.

Example statement for a consultation: 'The DFA should explicitly state that privacy is a prerequisite for fairness. Measures that increase surveillance, even with good intentions, undermine user trust and should be replaced with privacy-preserving alternatives.'

Step 2: Advocate for a Comprehensive Ban on Dark Patterns

Dark patterns are interface designs that trick or coerce users into making choices they wouldn't otherwise make—like sharing more data or subscribing to unwanted services. The DFA must go beyond the partial prohibition in the Digital Services Act.

Demand explicit prohibitions on dark patterns in commercial contexts, not just definitions with loopholes.
Insist on clear enforcement rules with penalties proportionate to the harm.
Avoid design mandates—don't require specific UI layouts, as that can freeze innovation and be easily circumvented.

Code-like example (policy clause): 'Any interface that uses deceptive visual cues, asymmetric choices, or pre-selected options to encourage a decision that a reasonable user would not make under neutral conditions is prohibited. The burden of proof lies with the platform.'

Step 3: Tackle Commercial Surveillance at Its Source

Surveillance-based business models incentivize exploitative personalization. The DFA should not only ban the worst outcomes but also restrict the business model itself.

Propose limits on data collection for personalisation without explicit consent that is freely given and revocable.
Support data minimization obligations and prohibit use of 'dark patterns' to obtain consent.
Encourage default privacy options that do not require users to navigate labyrinthine settings.

Example: 'The DFA should require that all default settings are privacy‑friendly. Any change to less private settings must be the result of an intentional, informed, and unbundled user action.'

Step 4: Strengthen User Sovereignty with Concrete Measures

User sovereignty means giving individuals real control over their digital life. Address three key areas:

Lock‑in: Mandate data portability with functional interoperability (not just download‑and‑upload). Users must be able to switch services without losing their history or social graphs.
Coercive contract terms: Ban terms that allow unilateral changes to services, pricing, or data practices without user consent.
Manipulative defaults: Prohibit pre‑ticked boxes, hidden subscriptions, or one‑click purchases that rely on inertia.

Step 5: Oppose False Solutions

Be alert to proposals that sound good but undermine rights. The biggest risk now is age verification mandates or broad identity checks. These force platforms to collect more personal data, creating honeypots for hackers and chilling free expression. Instead, support privacy‑preserving alternatives (e.g., decentralized attestations or client‑side verification).

In your advocacy, clearly state: 'Age verification is not a digital fairness measure; it is a surveillance tool that shifts the burden to users and compromises their privacy.'
Highlight that such mandates disproportionately affect vulnerable groups (e.g., LGBTQ+ youth, victims of abuse) who may not want to reveal identity to access services.

Common Mistakes

Confusing enforcement with surveillance: Increasing platform control over users is not fairness. Fairness means limiting platform power. Avoid supporting measures that require platforms to monitor user behaviour more deeply.
Focusing only on consumer harm at point of purchase: Digital fairness covers ongoing relationships—like social media feeds, recommendation algorithms, and account termination. Address the full lifecycle.
Ignoring enforcement design: Even a perfect law fails without robust enforcement. Advocate for clear, independent oversight with adequate resources and user redress mechanisms.
Treating privacy and fairness as separate: They are intertwined. A practice that violates privacy (e.g., undisclosed tracking) is inherently unfair because the user cannot make an informed choice.
Overly technical or narrow proposals: Policymakers need understandable reasoning. Frame arguments in terms of real‑world impacts on people, not just legal or technical jargon.

Summary

The EU's Digital Fairness Act is a pivotal opportunity to correct power imbalances in digital markets. By following the EFF's recommendations—prioritizing privacy, banning dark patterns comprehensively, combating surveillance business models, and empowering users—advocates can push for rules that protect fundamental rights instead of expanding platform control. Avoid false solutions like age verification that trade privacy for perceived safety. With these steps, you can help shape a DFA that truly delivers digital fairness for all Europeans.

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