Goodbye to the infinite “scroll”?

The European Parliament has declared The war against the infinite “scroll” and other potentially addictive practices in the digital world, such as “push” notifications, the default automatic playback used by platforms such as YouTube or Netflix or the limitation of content availability to a few hours, as is the case with Instagram or WhatsApp “stories”.

Nowadays, no one seems to question that social networks, dating apps and others digital platforms are designed to cause addiction. This has been concluded by a multitude of studies that, in addition, have warned about serious consequences that an inappropriate use of these tools can lead to for physical and mental health of users, especially younger users (anxiety, stress, lack of sleep, low self-esteem, eating and attention disorders, increased risk of suicide, etc.). To date, however, the legislative response to this reality has been lukewarm.

Now, in view of “the growing problems related to the addictive, behavioral and manipulative design of online services”, the European Parliament (specifically, the Committee on Internal Market and Consumer Protection) has decided to take action on the matter. Thus, on October 18, the European Parliament approved a draft report on the addictive design of online services and consumer protection in the Union's single market, in which he urged the European Commission to review current regulations and, if necessary, to urgently address existing gaps in relation to the addictive characteristics of digital services. It seems, therefore, that the European Parliament seeks to emulate, to a certain extent and bridging distances, the strict regulation to which other products and services that are potentially addictive and harmful to health, such as tobacco, alcohol or gambling, are subject.

Among other things, the European Parliament strongly criticizes the fact that some platforms and technology companies”exploit psychological vulnerabilities to design digital interfaces for commercial interests that maximize the frequency and duration of user visits”. In this regard, in accordance with the judgment of the European Parliament, the ultimate objective of these providers is to increase the money that users spend on online services and, more worryingly, increase the volume of user data that the provider can collect (remember that the monetization of user data is the main source of income for many online service providers).

In parallel, the European Parliament recognizes that, despite the legislative efforts of recent times, neither the Digital Services Regulations Not even the Artificial Intelligence Act nor do the rest of the Community regulations in the digital field sufficiently address the specific problem posed by the addictive design of online services.

Among the concrete measures suggested by the European Parliament, the following stand out:

- The review of the Unfair Business Practices Directive to introduce concepts such as “digital asymmetry”.

- The approval of a New law of users in the digital field, the”right not to be disturbed”.

- The deactivation by default of all the features aimed at capturing the user's attention (such as “push” notifications), as well as the inclusion of warnings regarding the potential dangers of this type of functionality.

- The reversal of the burden of proof in the event that an online service provider carries out practices that the European Commission or national authorities have considered or presume to be addictive.

- The obligation to develop ethical digital products and services free from misleading or addictive designs and, in particular, free from so-called “dark patterns” (interfaces designed to influence user decisions).

- The implementation of standards for digital products and services based on the”Safety by Design” (which reflects a clear parallel with the concept of “data protection by design and by default” introduced by the GDPR in terms of data protection).

In the absence of specific regulation, it is possible to address some of the controversial practices referred to by the European Parliament with the help of current regulations. As an example:

- The Unfair Commercial Practices Directive generally prohibits practices that may alter consumers' economic behavior, deceptive actions or omissions, and aggressive commercial practices.

- The Digital Services Regulation obliges providers of online platforms (a concept that, however, not all online service providers fall into) not to design, organize or manage their online interfaces in a way that deceives or manipulates the recipients of the service or in a way that distorts or otherwise substantially hinders the ability of the recipients of their service to make free and informed decisions.

The European Commission they must now assess whether, given the magnitude of the problem, it is appropriate to take a step further or not in the regulation of addictive designs of digital products and services through the approval of specific regulations in addition to the already wide range of regulations already available to the European Union.

Marina Manzanares Sanz | Head of IP/IT and Commercial Law, Legal Army