The Implications for Consumer Protection Law in the European Union of Behaviourally Informed Commercial Practices

Abstract: What level of influence should market actors be allowed to exert over consumers’ transactional decisions? While persuasive marketing is inherent to free markets and therefore uncontroversial, relatively recent research in the field of behavioural economics about systemic errors in human decision-making has shown just how susceptible consumers are to the will of market actors. Within a rapidly evolving commercial environment, characterised by new technology that resembles science fiction at times, it is time to reconsider whether consumers are adequately protected. The UCPD, as the primary legal instrument combating manipulative commercial practices within the EU, is analysed in depth in order to ascertain what level of protection consumers enjoy against these behaviourally informed commercial activities. The discussion extends beyond EU law into IHRL as a possible counterweight to excessive influence exerted by market actors over the decision-making processes of consumers. More specifically, the legal status of personal autonomy that includes consumer autonomy is investigated, as it is potentially undermined by commercial practices that are designed to take advantage of systemic errors in human decision-making. Autonomy in this context refers broadly to ‘freedom from external control or (excessive) influence’. Intrinsic to any discussion regarding autonomy is the issue of vulnerability, especially cognitive biases and heuristics as a source of vulnerability in the context of this thesis. The weaker the position occupied by a consumer or the more vulnerable they are, the less likely they are to engage autonomously with their environment, commercial or otherwise. The conclusions reached by the end of this thesis may not satisfy a reader in search of a quick fix. The matter is immensely complex and rendered more so by a number of factors that were unforeseen at the commencement of the research conducted for this thesis. Most surprisingly is the extent to which consumers willingly subject themselves to the control of market actors in an effort to make their lives easier. Moreover, the somewhat abstract nature of manipulation is such that it is exceedingly difficult to regulate. Finally, the focus on behaviourally informed commercial practices in general, as opposed to zooming in on particular instances thereof, is more conducive to identifying problems that require further attention than finding specific solutions to individual cases of problematic commercial practices.