Consumer Protection in the Age of Personalised Marketing: Is EU Law Future-proof?

Abstract

While companies used to advertise primarily via mass media, marketing (in particular online) is becoming increasingly personalised. Personalised marketing offers benefits to consumers, but can also exploit their vulnerabilities. For example, personalised marketing enables companies to specifically target psychological weaknesses in consumers. This threatens their autonomy and increases the power asymmetry between companies and consumers. EU marketing law, and in par-ticular the Unfair Commercial Practices Directive, aims at protecting consumers against economic harm by reducing power asymmetries between companies and consumers. This Article will discuss to what extent EU marketing law is future-proof in terms of its fitness to effectively protect consum-ers against personalised marketing techniques. It will be argued that the law is currently unfit to effectively protect consumers, and that recent legislative changes and proposals only address this problem to a limited extent. It is argued that a “quick fix” to make EU marketing law future-proof is not available, and that an overall redesign of EU marketing law is necessary to protect consumers against the personalised marketing techniques of today and tomorrow.