Fostering Consumer Protection in the Granular Market: the Role of Rules on Consent, Misrepresentation and Fraud in Regulating Personalized Practices

Companies increasingly employ data-driven technologies for the allocation and display of offers and advertising based on detailed consumer monitoring. Consumers may fail to recognize the manipulation of their choices if they are unaware of the exploitation of their habits, mental models, and biases to influence their behaviour. Companies may make use of consumers’ cognitive limitations and individual frailties to their disadvantage. Against this backdrop, private law rules could provide meaningful normative guidance in regulating personalized commercial practices. The article examines the role and characteristics of provisions regulating defective consent and misrepresentation to evaluate whether these rules could incorporate emerging findings on personalized practices and operate as viable instruments for the modernization of consumer protection.