Unfair commercial practices, digital asymmetry and reversal of burden of proof

Abstract

The paper starts from the premise that digital vulnerability is universal, structural, and architectural. Digital vulnerability is to be translated into the legal concept of digital asymmetry, so as to avoid confusion with existing concepts of vulnerability, which build on individual deficiencies in capacity. Digital asymmetry cannot be overcome through more and better information, nor can it be controlled by the prohibition of misleading advertising. It has to be classified as a form of aggression in the meaning of Arts. 8 and 9 of the Unfair Commercial Practices Directive. The burden of demonstrating compliance by digital architecture with consumer law lies with the supplier.