Articles
Kühling, Jürgen / Sauerborn, Cornelius, Dark Patterns undermining Digital Fairness? – A possible new “Digital Fairness Act” from a fundamental rights perspective, CRi 2025, 65-74
The article analyses the reform proposals emerging from the European Commission’s recent fitness check of core EU consumer protection directives – namely the Unfair Commercial Practices Directive (UCPD), the Consumer Rights Directive (CRD), and the Unfair Contract Terms Directive (UCTD) – regarding “dark patterns”. Building on our analysis that confirmed the general adequacy of the existing legal framework (CRI0079522), this second part shifts focus to the underlying fundamental rights implications of further regulatory tightening. Following an introduction (I.), the article outlines the tension between consumer protection, entrepreneurial freedom on a fundamental rights level (II.), and explores to what extent the current framework can accommodate proposed reforms without upsetting this balance (III.). The article closes with concluding results (IV.).
Gehrmann, Mareike Christine / Brings, Paul / Tenta, Jason, US E-Discovery and EU Compliance: A Clash of Laws, CRi 2025, 75-81
German companies facing e-discovery requests run the risk of being unable to comply with both German and US requirements. In addition to data protection requirements, such as the need to be able to demonstrate a legal basis for processing and transferring data, there are also challenges in terms of German employment law and telecommunications law.
Kühling, Jürgen / Sauerborn, Cornelius, Dark Patterns Undermining Digital Fairness? – The Legal Framework Against Manipulative Designs, CRi 2025, 82-90
The article offers an analysis of the current legal framework governing manipulative design and focusses in particular on the three key directives known as the backbone of EU consumer protection law: the Unfair Commercial Practices Directive (UCPD), the Consumer Rights Directive (CRD), and the Unfair Contract Terms Directive (UCTD). These three directives have been central to the fitness check by the European Commission evaluating whether and to what extent this current legal framework continues to ensure fairness for consumers in a digital environment. After a brief introduction (I.), the article first juxtaposes “digital fairness” and “dark patterns” in an effort to carve out the underlying notion of fairness (II.), before assessing each of the three directives in turn regarding their impact on “dark patterns” (III.) and summarising the results (IV.).
Case Law
District Court for the Northern District of California v. 25 March 2025 - No. 24-cv-03811-EKL, USA: Insuffient Evidence for Irreparable Harm by Training AI with Copyrighted Material, CRi 2025, 91-94
High Court of Justice v. 10 March 2025 - EWHC 532 (TCC), UK: Strict Limits on Reverse Engineering and Risks of Bypassing Safeguards in Software Development, CRi 2025, 94-95
Guangzhou Internet Court v. 8 September 2023 - Yue 0192 Min Chu No. 6486, China: Cross-Border Data Transfer Without Consent, CRi 2025, 95-97
Court of Appeals for the District of Columbia Circuit v. 18 March 2025 - No. 23-5233, USA: The Human Concept of “Author”, CRi 2025, 97-100
