3 - Substituted Consumers

Summary

This Chapter will examine whether the Digital Content Directive (DCD) can sufficiently protect the consumer who concludes contracts through software on AI-driven online platforms (without being directly involved in the contractual process) against certain of the existing risks. More specifically, due to a technical error or some other factor, such contracts may be mistaken or unintended by the human consumer. Moreover, the consumer may end up dealing with an unreliable, fraudulent or even fictitious trader suffering loss as a result. The question arises as to whether the consumer will have a sufficient remedy in these cases, namely an available route to compensation. In this respect, the Digital Content Directive merits examination with the aim of ascertaining whether it responds to this need of the consumers who contract on AI-driven platforms. The main questions in this context will be whether such platforms qualify as ‘digital services’ within the meaning of said Directive and if yes, whether the provisions of the measure are suitably adjusted to the need of the substituted consumer for an available route to compensation in these cases. These questions may also pinpoint to a possible approach towards the liability of marketplaces for the non-conformity of goods and services offered by third party sellers through their systems. As it will be shown, though the DCD does contain tools that could prove useful to consumers in their attempt to claim and receive compensation, its application is not without problems that may prevent this result. Other measures, specifically the Digital Services Act (DSA) and the Unfair Commercial Practices Directive (UCPD) may offer some help, where the DCD could not do much.