The Digital Markets, Competition and Consumer Act 2024 (DMCC) received Royal Assent on 24^th May 2024.

It has three key strands:

1. The regulation of large technology providers via a new regulator “the Digital Markets Unit” sitting inside the Competition and Markets Authority (CMA)
2. Widening the role of the CMA as a policer of competition and consumer law compliance and increasing the fines for non-compliance to similar levels for data protection non-compliance; and
3. Introducing new consumer protections.

We have previously created a more detailed note relating to the broad changes.

Of particular relevance to consumer-facing businesses are the new consumer protections and what these mean for the design of consumer experiences.

Consumer Law Elements of DMCC

The consumer protections fall into three broad categories:

1. Firstly, some specific commercial practices are now prohibited. The prohibitions have arisen from (1) a combination of further codifying past prohibitions and (2) adding in new trends in commercial practices (sometimes referred to as “dark patterns”) which have been deemed to be unfair to consumers.
2. Secondly, there is a non-specific general prohibition on commercial practices that are unfair. This creates a wide net and future-proofing against hitherto unseen or undeveloped practices. “Unfair” is defined as likely to cause the average consumer to take a transactional decision they would not otherwise have taken. The ways in which practices are potentially unfair are given colour in the CMA’s accompanying guidance, but it will be a matter of fact, circumstance and interpretation whether any particular course of action is actually unfair.
3. Thirdly, there is a proscribed process for subscription contracts.

The first and second elements came into force on 6 April 2025.

The subscription changes are expected to be effective from late 2025.

Enforcement

The Government has sat up and taken notice of the effect that the GDPR fining regime had on businesses and has replicated the regime in relation to consumer law breaches. Also, the DMCC has structurally altered the role of the CMA. Breaches of the DMCC risk fines of  up to 10% of global turnover or £300,000 whichever is higher and the CMA has now become a direct policer and enforcer of the law capable of bringing actions directly against offenders.

Guidance

The CMA has produced extensive guidance relating to unfair commercial practices.

The guidance breaks down commercial practices into four areas that are potentially unfair:

1. Misleading actions;
2. Misleading omissions;
3. Falling short of the requirements of professional diligence; and
4. Aggressive practices such as coercion and harassment

The third and fourth heads are self-explanatory and of little concern to reputable traders. However “misleading” actions and omissions, introduces scope  for interpretation of the nature of commercial practices, especially because the guidance notes practices should be considered in the context of an “average consumer.”

The “average consumer” should be interpreted as the average consumer within a targeted group. This means the average consumer is not necessarily the average person on the street, if a particular group is being targeted. The guidance also notes that if the average consumer for a good or service may have a common feature such as age, health vulnerability or other preponderance then, the average consumer will be subject to that common feature. For example, the average consumer for a care home will have a higher age and higher propensity to ill health and dependence than the average consumer across the total population.

Because there is significant scope for interpretation of what would amount to “misleading,” taking heed of the CMA’s guidance is important to show a good faith intention to adhere to the law.

Subscriptions

As previously mentioned, this part of the legislation is not currently in force.

The proscribed steps relating to subscriptions will only apply to annual (or longer) subscriptions.

The proscribed steps are likely to differ between goods, services and (as a subset of services) digital content. This is because services (including digital content) cannot be returned. Digital content is carved out of services, because the CMA realises there is scope for digital content to be wholly or significantly consumed in a short period of time, or more specifically, during a cooling-off period.

The essence of the subscription requirements is three-fold:

• Consumers must be given full and clear information about a subscription contract at the outset of the agreement;
• Consumers must be given a 14 day cooling-off period at the outset of the subscription and at each renewal; and
• Consumers must be able to cancel in a simple way using the method they initially used at the outset of the subscription.