Consumer law | UK Regulatory Outlook November 2023

Update on the UK Digital Markets, Competition and Consumers Bill

The Digital Markets, Competition and Consumers Bill (DMCC Bill) was included in the King's Speech on 7 November 2023. (See our Insight on the digital, data and media bills announced in the speech.) The DMCC Bill was re-introduced to Parliament on 8 November 2023 and the amendments were tabled to it on 15 November 2023. The DMCCB had its first reading in the House of Lords on 22 November.

A new version of the bill has been published, incorporating the amendments passed on third reading in the House of Commons. It is due to have its second reading in the House of Lords on 5 December.

Ofcom launches a consultation on illegal harms duties under the Online Safety Act

Ofcom has published its first consultation under the Online Safety Act, which focuses on services' duties to protect users from illegal content. See our Insight for more details. To find out more about the new legislation, also see our Insights providing an overview of the Act, covering the scope of the Act and looking at 10 key takeaways for online service providers.  

UK government consults on introducing a 'super-complaint' system under the Online Safety Act

The Department for Science, Innovation and Technology has launched a consultation on allowing certain organisations, such as children's charities, free-speech advocates, and "other groups", to raise online safety and freedom of expression concerns directly to Ofcom by making a "super-complaint" under the Act.

The Act provides that a super-complaint will only be admissible if Ofcom considers that it is of particular importance or that it relates to the impacts on a particularly large number or users. The idea behind a super-complaint system is to help Ofcom stay on top of systemic harmful trends and emerging threats by letting some organisations raise concerns as soon as they emerge.

The government is seeking views from "expert groups" to help define which organisations can make super-complaints, the conditions and format of a super-complaint and expectations as to how Ofcom should respond to such a complaint.

The consultation closes on 11 January 2024.

EU draft report on addictive design in the digital environment

The European Parliament's Internal Market and Consumer Protection Committee has adopted a draft report on the addictive design of certain digital services.

While admitting the positive influence social media can have on society, the committee takes the view that social media's addictive design can cause physical, psychological and material harm. It is especially concerned about the impact digital addiction has on children and adolescents and calls for more research.

The draft report also addresses dark patterns and MEPs conclude that companies should be obliged to develop ethical and fair digital products and services "by design".

The committee also says that recent legislative developments, such as the Digital Services Act and the Artificial Intelligence Act, are not enough to address the issue of addictive design, and calls on the European Commission to present new legislation on the topic.

Once adopted, this report will feed into the Commission's fitness check on EU consumer law.

EU Commission adopts proposal to adapt out-of-court dispute resolution to digital markets

The European Commission has adopted a proposal aimed at adapting out-of-court dispute resolution to digital markets. The proposal aims to extend the scope of the Alternative Dispute Resolution (ADR) Directive (2013/11/EU) and expand the range of issues that can be resolved out-of-court to cover non-EU traders and to be able to address manipulative interfaces, misleading advertising or geo-blocking rules.

The proposed changes envisage businesses continuing to be free to decide whether to participate in ADR or not, but if a consumer asks for ADR intervention, the business would be obliged to reply within 20 working days. The amendments aim to assist consumers' (especially vulnerable ones) understanding of the procedure.

The Commission has launched a feedback period on its proposals, which closes on 29 December 2023.

UK CMA's chair speech on consumers, competition and AI

See AI section.

European Parliament and Council adopt negotiating positions on Right to Repair Directive

The Commission's proposal for a Right to Repair (RTR) directive was first introduced in March 2023 (see this earlier Regulatory Outlook).

The proposal aims to encourage a sustainable consumption of goods by  strengthen the consumers' rights to repair defective goods. The original proposal by the Commission would have made repair the default remedy for breach of consumer rights. The European Parliament and Council have adopted their negotiating positions in anticipation of trilogue discussions.

The Parliament's position is:

• Consumers to be given an additional right to bring a claim in relation to lack of conformity of goods against the manufacturer. This would be in addition to the existing right to bring a claim against the retailer.
   
• In line with the Commission's proposal, repair should be the primary remedy for lack of conformity (unless the repair would create significant inconvenience to the consumer). Where consumers choose repair as a remedy, they should be offered a one-year extended warranty starting from the moment their repaired good is returned to them.   
   
• That the seller should undertake the repair within a reasonable period of time. In situations where this is not the case, the seller should loan the consumer a replacement product free of charge.
   
• Whether or not an item is "repairable" will become a relevant factor in considering whether the goods are in conformity.

The Council in contrast proposes to maintain the consumer's choice as to whether to repair or replace a product. But it would require retailers to bring the obligation to repair to the consumer's attention. The Council also proposes an extension of the liability period of six months from the moment when the product is brought into conformity.

Neither of the current drafts are the final version of the legislation – they constitute the Parliament's and the Council's respective positions for further negotiations between the institutions to reach an agreement on the final version of the text.

For the products angle of the RTR directive proposal and further details see Products section.