The burden belongs to the designer

The Digital Fairness Act is on the European Commission's indicative agenda for 11 November. It is the new law on fairness online: dark patterns, addictive design, subscriptions that are easy to start and hard to stop. The date may slip. The issue will not.

I am writing now, before reading the text. That way, in a few days, I can compare what I hoped for with what arrives. This site is a record: that is part of what it is for.

The problem is not missing rules

The rules already exist. Unfair commercial practices, unfair terms, consumer rights, the Digital Services Act. And yet, in the Commission's consultation, 69% of respondents said they had trouble cancelling an online contract. 62% had a subscription renewed without any reminder.

Industry associations say better enforcement of existing rules is enough. They have a point: one more law, badly written, helps no one. The risk of overlap is real.

But "better enforcement" is not enough, for two reasons.

First, the maze has many side doors. The DSA ban on deceptive interfaces does not apply to micro and small enterprises, search engines, or some services such as certain video games.

Second, and deeper. Today it is the person on the receiving end of the design who must prove they were pushed where they did not want to go. One person against an interface tested on millions of users. With experiments they will never see.

Shift the burden

In Habeas Mentem I put it this way: understanding is presumed, and whoever designs the choice environment must show they did not get around it.

This is not an abstract idea. It is a rule about allocating risk, like many others in law. Whoever holds the information carries the proof. And here, the designer holds all of it.

What does that mean in practice?

Leaving must be as easy as joining. If you subscribed in two steps, you should be able to cancel in two steps. It is a rule you count, not one you interpret.

Whoever personalises must be able to explain why. Personalisation is not illegal. It becomes a problem when it exploits the weaknesses of the person choosing. The question is who has to prove the difference.

Fairness is shown with data, not statements. Companies already measure everything: conversions, time on page, drop-offs. The same tools can tell whether people understood what they were choosing. That is the work we do at Neuro Legal Cortex, measuring how people read the law. Understanding can be measured; the mind cannot be read.

What I will look for in the text

I will not count the bans. A list of prohibited practices ages fast: design moves faster than legislators. I will look for three things.

Who carries the proof. If it stays entirely on the consumer, we will have another liturgy: rules that celebrate freedom of choice without protecting it.

Whether there are measurable benchmarks. "As easy as joining" can be checked. "Non-manipulative", with no criteria, is an endless argument.

Whether the rule also helps those who design well. Many companies want to build fair interfaces and do not know what is enough. A clear rule protects them too. Clarity, not simplicity. Humanocracy, not bureaucracy.

If you do business in Europe, or sell into Europe from London or New York, my practical advice is simple: do not wait for the final text. Run the exit-door test today. Count the steps to cancel. If there are more than the steps to sign up, you already have your answer.

When the proposal is published, I will read it with this list beside me. And I will tell you whether we are there.