Data-driven consumer regulation and enforcement

TechReg Special issue

People differ with respect to their preferences, personalities, cognitive abilities, and attitudes. These characteristics can influence consumption patterns, and companies have long been trying to tailor their offerings according to consumer profiles based on data collected assiduously. As consumers started putting more and more of their lives online, these characteristics became available for the taking by traders, often through opaque data brokers that engage in dubious data mining and profiling practices (e.g. data enrichment). While scandals such as Cambridge Analytica have raised public concerns about the fairness of commercial practices or contractual terms by companies that aggregate consumer data, a lot of risks and harms remain unknown to regulators and their enforcement authorities, who struggle for more awareness about existing compliance failures or new wrongs. 

In the meanwhile, the European Commission’s recent White Paper on Artificial Intelligence (AI) promotes the adoption of AI by the public sector, which will undoubtedly complement the policy objectives behind the updated consumer enforcement framework set out by Regulation 2017/2394. Applicable since January 2020, this Regulation gives national consumer authorities an even stronger mandate to monitor consumer harms and take action against rogue traders, although no further coordination is specified for other organizations with stakes in the harmonization of consumer protection rules such as competition or data protection. 

So far, national consumer protection authorities have been faced with the implementation of private law rules that either often date from a different century, or have been written in a future-proof manner and are designed to apply as a common denominator across a very wide array of industries. In this context, the law distinguishes between different groups of individuals such as consumers and professionals, or even between average and vulnerable consumers. These groups are however based on conspicuous features that would justify differential treatment. Yet current legal frameworks in private law, unlike other fields (e.g. criminal law) pay little heed to the reliance on data-driven statistical determinations which may be necessary in the formulation, interpretation or application of the standards they embody. Instead, such frameworks perpetuate normative evaluations which may be very different from reality. 

This upcoming TechReg special issue aims to tackle questions arising out of the developments outlined above, centered around two complementing themes: the future of European consumer protection regulation as well as the future of its enforcement. Contributions should focus on topics such as:

– the fitness of normative tests such as the average consumer;

– the desirability of developing profiling legal frameworks and tools for consumer protection ;

– the interplay between consumer protection and other relevant fields such as data protection, cybersecurity, criminal law, gambling regulation, financial services regulation, and/or competition law in data-driven markets;

– the challenges posed to the enforcement of consumer protection on digital markets, and how those could be addressed by relying on data;

– the legal and ethical issues arising out of the use of data-driven monitoring tools in consumer markets. 

We encourage scholars from fields as diverse as European private law, privacy and security, consumer forensics and public administration to apply to this call for papers.To publish original work in the special issue, please submit (1) a title, (2) a short abstract including relevant literature (max 500 words), and (3) an outline (max 1 page) by 14 October by email to Prof. Vanessa Mak (v.mak@law.leidenuniv.nl). Abstracts and outlines should be uploaded as a single file. Final versions of the papers will be expected by 31 January 2021. Articles should be around 8000-12000 words (including footnotes) in length, and will be subject to double-blinded peer review. 

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