Rescuing transparency in the digital economy: in search of a common notion in EU consumer and data protection law

Abstract

Abstract Transparency remains a contested concept in European Union (EU) law and policy. All the main instruments of EU consumer and data protection law require that consumers be given access to and understand certain information about their relationships with traders. Improved transparency is also proposed as a response to a variety of problems associated with digital markets, including those experienced by consumers and data subjects. At the same time, transparency is increasingly challenged as ineffective and potentially even counterproductive from doctrinal and critical scholarship alike. First, transparency is seen as inherently unable to transform the economic reality on the ground and to address the power imbalances between consumers and traders. Secondly, it is argued that acts of representation involved in transparency suffer from complexity and are prone to exploitation by the actors who engage in it. This, in turn, casts doubt on the ability of transparency to steer the behaviour of businesses and transform markets to the benefit of consumers and society. This article builds upon prior critiques of transparency and connects them with a doctrinal analysis of EU consumer and data protection law and in particular the Unfair Contract Terms Directive, the Unfair Commercial Practices Directive, and the General Data Protection Regulation. Seven different notions of transparency are identified: (i) Transparency as access to the medium over time; (ii) Transparency as presentation of information that facilitates understanding; (iii) Transparency as formulations that facilitate understanding; (iv) Transparency as non-ambiguity and logical intelligibility; (v) Transparency as the absence of deception and confusion; (vi) Transparency as completeness and specificity; and (vii) Transparency as non-arbitrariness. The article submits that the acts of representation involved in transparency are already recognized in the three legal regimes and attempts are made to leverage the mediated nature of transparency to consumers’ advantage. Crucially, existing efforts to regulate mediation and improve its quality can, nowadays, be reinforced with the help of algorithmic systems geared toward supporting consumers. Moreover, some of the deployments of transparency identified—most notably transparency as non-arbitrariness—push its outer conceptual boundaries in ways that bring transparency very close to fairness. The article ultimately questions a vision of transparency as a necessarily softer-touch protective frame, which cannot alter business conduct. The conceptual richness of transparency offers opportunities for its deployment in more disruptive ways.