Burden of Proof in Law Prohibiting Unfair Commercial Practices

Directive on unfair commercial practices (UCPD) is based on the industrial economy, therefore, it has been formulated before the development of the Internet and digital economy, and still remains in force with no major changes since its adoption. As the main legal tool for protecting consumer decision-making autonomy, which is not substantially amended following the Fitness Check of consumer law that resulted in the adoption of Directive 2019/2161/EU, it is questionable whether the UCPD ensures an effective protection of consumer decision-making autonomy in the digital environment. This paper analyses the potential of the burden of proof model of the UCPD, in unfair commercial practices’ controls in digital environment, before demonstrating how the UCPD could be modernised while preserving the balance between commercial interests and consumer rights to free decision. This could be done by putting the burden of proof on trader in complex cases of unfair commercial practice in digital environment, especially in cases when the consumer is in a significant digital asymmetry with the trader due to the trader’s usage of algorithms or other complicated digital practices or business models.