Right to earliest re-routing confirmed - CJEU's order in Airhelp (C-264/20)

Our readers may be interested to know that on January 14 the CJEU issued an order in the case Airhelp (C-264/20), which confirmed really the already previously issued judgments on the obligations of air passengers under Regulation 261/2004, including the judgment in the recent TAP case (see our comment here Deja vu...). 

In the Airhelp case, passengers were delayed on their flight from the US to Austria with Austrian Airlines, as a part of the aircraft they were originally supposed to fly with was damaged. What happened was that when it was parked, a wing of another aircraft collided with it. The CJEU had no doubts that this was a clear example of extraordinary circumstances, as the situation was outside the operating airlines' control (para 24) and was not directly linked to the exercise of their services (para 23). 

More importantly, the CJEU highlighted again, following from the TAP case, that if the airline then re-routed passengers to their original destination by placing them on the next following flight, taking place the next day, this should be assessed from the point of view of whether it was a 'reasonable measure' pursuant to Article 5(3) allowing the airline to avoid paying compensation pursuant to Articles 5(1)(c) and 7(1) of the Regulation 261/2004. The CJEU mentions again that the airline should not limit themselves to just re-routing passengers on their next available flight (para 29) but instead, if their resources allow it (which the national court should assess - para 32), look for an option to provide a substitute aircraft or arrange for seats on flights of other airlines. Again, the re-routing is described as needing to be 'reasonable, satisfactory and the earliest possible' (para 30).

Further updates on consumer protection in the digital economy: TikTok, Google and Apple in the spotlight

Yesterday we reported on some encouraging news about online consumer protection coming from Norway. Today we would like to follow up on these reports and briefly review other developments relevant to consumer protection in the digital economy, which caught our attention over past months. All of these developments show how consumer law, competition law and data protection law are all relevant to the protection of consumer interests vis-a-vis major online platforms.

Our readers may have heard about the recent decision of the Italian data protection authority, Garante, ordering Tik Tok to immediately limit the processing of personal data with regard to users whose age could not be established with certainty. The action was taken as a matter of urgency, following a death of a young girl in Palermo who took part in a "black-out" challenge that spread across the platform. While this story understandably captured public attention, it is worth noting that a formal proceeding against TikTok was initiated by the Garante already at the end of last year.

Earlier this week Reuters reported that the search engine giant Google may be facing yet another antitrust probe from the European Commission, this time in relation to its advertising practices. Under examination are among others the integration of DoubleClick (Google's ad serving unit) and the company's plan to phase out third-party cookies on Chrome. Several weeks ago the British Competition and Markets Authority opened an investigation on the same subject. According to Google, greater concentration of its advertising ecosystem (aka "Privacy Sandbox") is supposed to better protect consumers’ privacy (which, of course, remains to be verified, particularly in light of "dark patterns" employed by the trader), yet authorities fear it they may negatively impact other interests (here: commercial interests of the publishers, although one could also think of consumer interests other than privacy). As the CMA notes, the challenge faced by regulators is "to address legitimate privacy concerns without distorting competition". It is worth recalling that online advertising is also part of the proposed Digital Services Act, which envisages e.g. an obligation of very large online platforms to publish ad repositories with information about targeting.

Last but not least, back in November, the data protection organisation NOYB filed a complaint with the Spanish and German data protection authorities against Apple's Identifier for Advertisers, arguing that it allowed for user tracking without consent. Interestingly, the organization - co-founded by the activist Max Schrems - chose to rely on the E-Privacy Directive instead of the GDPR, to avoid "endless procedures" of cooperation between DPAs. Indeed, some of the high-profile cases under the GDPR are still ongoing, including an inquiry into Google’s processing of location data, triggered by - you guessed it - a report by the Norwegian Consumer Council.

Norwegian Consumer Council - sheriff of online consumer protection

The Norwegian Consumer Council (Forbrukerrådet) has published two interesting news reports this month. 

 

First, on Jan 14 it has reported on potentially unfair commercial practices of Amazon, which make it difficult for consumers to cancel their Amazon Prime subscription (You can log out, but you can never leave). The Norwegian Consumer Council identified many of these practices as Amazon using dark patterns to manipulate consumers online, hindering them in making informed choices, trying to nudge them away from actually cancelling the subscription (by misdirection, visual interferences, confirmshaming). This may be achieved through making consumers go through many pages, asking them to confirm their choices in a manner that causes confusion with consumers, etc. Generally, the Norwegian survey looked into practices of digital service providers, where consumers would take out a subscription for services. Such subscriptions involve automatic payments, content is delivered online, and thus if consumers stop using a service they may forget about it, it becomes invisible to them. Therefore, it may be especially important to facilitate consumers' termination of such services. And yet, the survey found that 25% of respondents have experienced problems with cancelling such subscriptions due to a difficult process having been set up.

Today, it has reported that another Norwegian authority - Norwegian Data Protection Authority (Datatilsynet) - issued a fine of over 9.5 million Euro to the dating app Grindr (10% of their global annual revenue), following on the Norwegian Consumer Council's complaint from a year ago about infringements of privacy by this app (Historic victory for privacy as dating app receives gigantic fine). The breach of GDPR occurred due to the app collecting and sharing personal data without sufficiently informed and explicit users' permission to such practices (more in the report 'Out of control', on Grindr specifically as of p. 72).

Green Consumption Pledge

Yesterday, the European Commission launched the Green Consumption Pledge, which is announced as the first initiative of the new Consumer Agenda, aiming to promote sustainable consumption. By signing the pledge companies commit to improve their environmental impact and help consumers make more sustainable purchases. The pledge is actually a set of five core pledges, and companies need to take specific measures in at least 3 out 5 of these pledges upon signing. They will also publish data on their progress to achieving these steps. The five core pledges are as follows:

1. Calculate the carbon footprint of the company (incl. supply chain) and commit to footprint reduction;

2. Calculate the carbon footprint of selected flagship products and to achieve certain reductions therein;

3. Increase the sale of sustainable products or services;

4. Commit part of the corporate PR expenditure to the promotion of sustainable practices;

5. Ensure information provided to consumers in relation to the company and product carbon footprints is easy to access, transparent and up-to-date.

This initiative is aimed at non-food products (as food products are covered by the separate Code of Conduct within the Farm to Fork strategy). Companies may join the pledge by contacting the Commission by end of March 2021. The companies that so far have joined are: L'Oreal, Renewd, Lego Group, Decathlon, Colruyt Group.