CCLFR research seminar with Dr Mel Kenny, Professor Dermot Cahill and Dr Jing Wang

Event time: 11:00-12:00

Title: Conceptualising a New Approach to Consumer Protection in the Online Space: Towards an Interlegal Realignment?

Abstract

The threats to consumer protection in the online space are so potent that addressing them with a traditional consumer law approach approximates to an exercise in self-delusion. While consumers are increasingly seen as “predictably irrational,” online firms have a corresponding near total insight into consumers’ behaviour via their harvesting of consumer data. The asymmetry between consumer vulnerability and the online behemoths’ market power could not be greater. To more fully address consumer protection, the broader choreography across an interlegal space composed of consumer and competition law, data protection and sectoral regulation needs to be examined. The new approach requires abandoning ideas of “average” consumers, while focusing on a more stringent scrutiny of market power and firms’ capacity to leverage that power. In addition, an interlegal cross-referencing of norms (identifying market power as a criterion for unfair practices and questioning whether abuses of dominance automatically violate Unfair Commercial Practices Directive (EU)/Digital Markets, Competition, Consumers’ Act, 2024 (UK) and a presumption in favour of a high standard of consumer protection is required. Meanwhile, given re-regulation in the EU and deregulation in the US we must anticipate global policy divergence; a divergence which catches the UK, post-Brexit, attempting to play it both ways.