The UCTD 30 Years Later: Identifying and Blacklisting Unfair Terms in Digital Markets

Thirty years since it entered into force, the Unfair Contract Terms Directive (‘UCTD’) needs updating to address the challenges posed by digital services. This concerns in particular the fundamental research question of identifying new unfair terms of digital service providers (‘DSPs’) so that they can be included in a new blacklist. These challenges are central to the ongoing EC study named ‘Fitness Check of EU Consumer Law’ concerning the evolution of consumer law in the digital age, and promoting a fair and transparent environment for consumers in an ever-changing digital landscape. The article identifies digital-specific unfair terms used by DSPs and organises them into four main themes (i.e., digital services and contents, automation and personalisation, price & free services, and consumers’ data rights). It also discusses the methodological approaches adopted by institutions and researchers in detecting such types of unfair terms in digital environments. Finally, the article examines the possible regulatory options and, particularly, the possibility of establishing a new blacklist of digital-specific unfair terms and/or developing EC guidelines for fairness assessment under the UCTD