By Arno Lampmann · Published
MagazinneuOn 11 November 2026 the European Commission presented the Digital Fairness Act, and some of the coverage read as if the internet were finally about to become fair. Influencers are to label advertising, and online shops are to stop faking scarcity.
Anyone who practises unfair competition law in Germany will rub their eyes. Most of this has been prohibited for years, and what is actually missing is not addressed by the proposal.
The Digital Fairness Act: what Brussels has proposed
The European Commission presented its proposal for a Digital Fairness Act (DFA) on 11 November 2026 (COM(2026) 1100), together with a Simplification Directive and a revision of the Consumer Protection Cooperation Regulation (CPC Regulation). The Commission itself calls the package the most significant upgrade of EU consumer protection law in over twenty years. The European Parliament and the Council still have to negotiate it, and observers do not expect it to apply before the end of 2028.
According to press reports, for instance in DER SPIEGEL, influencers will have to label paid advertising in every single post, regardless of their number of followers, and will be subject to the same rules as any business when promoting products. Online shops are to be barred from fake stock counters and countdowns. Games are to show the euro value of virtual currencies, ticket platforms using dynamic pricing are to display both the current and the maximum price, and consumers are to receive a reminder before a free trial turns into a paid subscription.
What is new is mostly the wrapping
Placing the proposal next to the German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG) reveals a great deal that is familiar. The Commission admits as much in its explanatory memorandum: the DFA converts the Unfair Commercial Practices Directive (2005/29/EC) into a directly applicable regulation, and its substance – the general clause, the prohibitions of misleading practices, aggressive practices and the blacklist in the annex – is expressly carried over. The instrument changes rather than the content.
Artificial scarcity is the clearest example. A false statement that a product will only be available for a very limited time, made to elicit an immediate decision, has long been on the list of practices that are always unfair under No. 7 of the Annex to Section 3(3) UWG, and Section 5(2) no. 1 UWG applies alongside it. Only this week we reported (in German) on proceedings before the Regional Court of Düsseldorf (Landgericht Düsseldorf) in which a stock counter in an online shop dropped from 16 to 4 units over the day, driven solely by the time of day (LG Düsseldorf, case no. 12 O 203/26). The chamber believed the source code and prohibited the advertising. No new law was needed for that, but a client was needed who was prepared to pursue the infringement at her own cost risk.
Influencers are no different. Since 2022, Section 5a(4) UWG has expressly required the commercial purpose of a business practice to be disclosed, and even before that the Federal Court of Justice (Bundesgerichtshof, BGH) clarified in three judgments of 9 September 2021 (case nos. I ZR 90/20, I ZR 125/20 and I ZR 126/20) when an Instagram post counts as advertising. The number of followers never mattered. An influencer who promotes products is already a trader within the meaning of the UWG and subject to the same prohibitions on misleading practices as any retailer, and the ban on advertising vapes to minors already follows from German youth protection and tobacco law. We wrote about labelling product posts (in German) years ago.
The list goes on. A direct exhortation to children to buy is prohibited by No. 28 of the Annex, and the BGH applied it to an online game as early as 2013 (judgment of 17 July 2013, case no. I ZR 34/12 – Runes of Magic). Consumers who take out a subscription online have been able to end it via the cancellation button under Section 312k of the German Civil Code (BGB) since 1 July 2022, and tacit renewals are only permitted with monthly termination rights under Section 309 no. 9 BGB. Some points are genuinely new, such as displaying the maximum price under dynamic pricing, the reminder before a free trial ends, the option to switch off addictive design features and the ban on personalised advertising aimed at minors. One may debate how much of this is needed. It is new, at least.
Why, then, are the existing rules ignored so often?
Because unfair competition law in Germany depends on private enforcement, and the legislature deliberately weakened exactly that six years ago. There is no German authority that systematically pursues unfair commercial practices. The UWG relies on competitors, trade and consumer associations and chambers (Section 8(3) UWG).
With the Act to Strengthen Fair Competition (Gesetz zur Stärkung des fairen Wettbewerbs), in force since 2 December 2020, the legislature set out to curb abusive warning letters. What it mainly hit was the warning letter itself. Since then, only those who sell goods or services to a not insignificant extent and not merely occasionally count as competitors. Competitors can no longer claim reimbursement of their costs for warning letters concerning breaches of statutory information and labelling obligations in e-commerce and online media (Section 13(4) UWG), and for smaller businesses a contractual penalty is excluded for a first warning letter in such cases (Section 13a(2) UWG). Whether a missing advertising label on an influencer post falls under this is disputed, and that uncertainty alone makes some competitors hesitate. Associations must be entered in a list kept by the Federal Office of Justice, and the venue at the place of infringement has largely been abolished for online infringements (Section 14(2) UWG); how far exactly is discussed in our article on the so-called flying venue (in German).
Back in 2021 we called this legislative activism (in German), because the courts were already recognising and rejecting abusive warning letters. Five years on, the calculation for a retailer who spots a competitor using fake countdowns or incomplete mandatory information is fairly simple: the cost risk lies with him, while the infringer, at worst, has to sign a cease-and-desist declaration. Many therefore let it go, and those who ignore the rules know it.
Brussels has at least recognised the enforcement problem. The revised CPC Regulation is to allow the Commission to investigate large cross-border cases itself and impose fines, according to news agency reports of up to 6% of global turnover. That concerns the large platforms, however. The smaller online shops and influencers that the DFA, according to the reports, expressly targets will not be pursued by Brussels. For them, enforcement remains with competitors and associations in the Member States – and in Germany with a system that was deliberately made expensive and unattractive.
A pattern familiar from criminal law
Responding to an enforcement problem with new rules is not a privilege of consumer law. After every high-profile case, there are calls in criminal law for tougher penalties, even though the existing sentencing ranges are rarely exhausted and what is really lacking are investigators, judges and swift proceedings. New rules are cheap, enforcement costs staff and money, and only the former gets a press conference.
There is little to object to in a single regulation for 27 Member States, and some clarifications, for instance on dark patterns, may make the law easier to apply. As a groundbreaking innovation, however, the package hardly qualifies, as long as a competitor who wants to enforce a labelling obligation cannot even recover his costs.
What businesses should observe today
Waiting for the DFA is not a strategy, because the essential prohibitions already apply.
- Stock counters, countdowns and today-only offers must already be truthful; anyone who simulates them technically risks a preliminary injunction.
- Businesses working with influencers should regulate and monitor labelling per post in their contracts, because under Section 8(2) UWG the business is also liable for its agents.
- Anyone planning to act against a competitor should check in advance whether warning letter costs are recoverable under Section 13(4) UWG, which court has jurisdiction and whether urgency still exists; many German courts allow only around one month from knowledge.
- Conversely, recipients of warning letters should check whether the costs claimed are owed at all before paying. Many countdowns will run out before the Digital Fairness Act applies. Most of them are already prohibited today.
Frequently asked questions about the Digital Fairness Act
What is the Digital Fairness Act?
The Digital Fairness Act is a proposal for an EU regulation presented by the European Commission on 11 November 2026. It is to replace the Unfair Commercial Practices Directive and add rules on dark patterns, influencer marketing, in-game currencies, dynamic pricing and subscriptions. As a regulation it would apply directly in all Member States.
Does the Digital Fairness Act already apply?
No. The proposal still has to be negotiated and adopted by the European Parliament and the Council. It is not expected to apply before the end of 2028; until then, the existing national rules such as the UWG and the BGB continue to apply unchanged.
Are fake scarcity messages in online shops already prohibited in Germany?
Yes. A false statement that a product is only available for a limited time in order to trigger a quick purchase is always unfair under No. 7 of the Annex to the UWG, and it is also misleading as to availability under Section 5 UWG. Competitors can take action with a warning letter and a preliminary injunction.
Do influencers already have to label paid advertising?
Yes. Under Section 5a(4) UWG the commercial purpose of a post must be recognisable if the influencer receives payment or a similar consideration for it. The obligation applies to every single post and does not depend on reach.
Can a competitor recover the costs of a warning letter?
In principle yes, if the warning letter is justified and meets the formal requirements of Section 13 UWG. For breaches of information and labelling obligations online, however, competitors cannot claim reimbursement. Whether a case falls under this exception should be checked before sending the letter.
Is a competitor using fake countdowns or hidden advertising on the German market?
We assess whether action is worthwhile, which costs you can recover and which court may have jurisdiction. You will usually receive an initial assessment within 24 hours.
Further information
- Our fields of activity (in German)
- Competition law at LHR (in German)
- Practical handbook on the UWG (in German)
- Our successes (in German)
Bild: LHR