Who is the vulnerable consumer?

In two weeks, if the calendar holds, the European Commission will present the Digital Fairness Act. The date going around is 11 November. On the table: interfaces that nudge, design that breeds compulsion, personalisation that exploits our weak spots, influencer marketing.

Many will read it as yet another package of obligations. I read it as a question Europe is asking itself, perhaps without saying so: who is the consumer the law wants to protect?

The consumer who doesn't exist

For decades, consumer law has worked with one reference figure: the average consumer, reasonably well informed and reasonably observant. Someone who reads, compares, decides. Give them the right information and they choose well. If they choose badly, that is their business.

It is a useful fiction. But it was built for a world of shop windows and paper contracts. Not for a screen designed by teams that test every colour, every button, every second of waiting, to produce a precise behaviour.

The Commission has admitted as much. Its fitness check of EU consumer law, published in October 2024, concluded that the existing rules remain "relevant and necessary, but only partly effective in the digital environment". It put the harm to consumers from problematic digital practices at 7.9 billion euros a year.

Only partly effective. In plain words: we have rules written for a person who, in front of certain interfaces, simply isn't there.

The word that will decide everything

People following the file closely point to two knots in the negotiation: how to define dark patterns, and how to define vulnerability. It sounds technical. It is the political question.

If vulnerable means only children, the elderly, people in financial hardship, the Digital Fairness Act will be a law that protects categories. Useful, but at the margins. The rest of us will still be treated as that average consumer who reads everything and understands everything.

If instead we accept that vulnerability is not a trait of the person but an effect of the environment, the picture changes. We are all vulnerable, at certain moments and in front of certain architectures. At eleven at night, tired, with a countdown flashing. Facing a subscription that starts with one click and ends in seven steps. Not because we are fragile. Because the environment was designed to find the point where we become so.

This is the heart of what I am writing in Habeas Mentem. The law keeps presuming that we have understood. That consent given is informed consent. That a choice made is a free choice. This presumption of understanding holds only if nobody has designed the environment against us. When someone has, the burden should shift: it is not for me to prove I was manipulated, it is for whoever built the interface to prove it could be understood.

Understanding can be measured

Someone will object: how do you decide whether an interface or a text was understandable? Isn't that subjective?

Less than we think. At Neuro Legal Cortex we measure how people read the law. In my chapter for Mente e Tecnologia we applied the LX Complexity Score in an exploratory study of 100 people, using EEG and fNIRS. Every document we analysed sat above the experimental threshold: syntactic density at 72 out of 100, semantic distance at 68, against a threshold of 45. None below it. It is an early study, not a final truth. But it says something simple: difficulty is not an impression. It leaves measurable traces.

Understanding can be measured. The mind cannot be read. That distinction matters. I am not asking the law to get inside people's heads. I am asking it to check whether the environment in which they decide makes understanding possible. It is a test of the design, not of the person.

That is why I hope the Digital Fairness Act does not stop at a longer list of banned practices. Lists age fast: every ban breeds its creative workaround. We also need design criteria. Clarity, not simplicity. Fewer choices, more freedom. A way out as short as the way in. Information organised around how people think, not around the order of legal articles.

Anyone building digital products should see this as an opportunity. Compliance can be designed. An interface that makes itself understood is not a cost: it is an advantage you can prove. And for those working across the EU, the UK and the US, the direction is the same everywhere, even if the tools differ: digital fairness will increasingly be judged by design, not by declarations.

In two weeks we will see the text. I will look first at one thing: which person the legislator has in mind when writing the word "consumer".