Digital Fairness Act Series: Transparency and Disclosure Obligations for AI Chatbots in Consumer Interactions
The emergence of AI chatbots is reshaping the landscape of consumer interactions, providing businesses with innovative ways to handle inquiries and complaints. While these tools offer unparalleled speed and availability compared to traditional customer service channels, significant gaps in consumer rights have recently come to light.
The European Commission’s Digital Fairness Act Fitness Check has identified a critical issue: EU consumers currently lack a cross-sectoral right to demand human contact when interacting with AI chatbots. As the Digital Fairness Act is set to address these concerns, it remains uncertain how the Commission will propose to rectify this gap, especially since the proposal is expected to be published in the third quarter of 2026.
AI Chatbots Cannot Be the Only Contact Channel
Under existing EU law, particularly the Consumer Rights Directive (CRD) and the eCommerce Directive, businesses must ensure that consumers have access to traditional communication channels. This includes providing the trader’s postal address, telephone number, and email address. The Court of Justice of the EU has reinforced this obligation, stating that consumers must be able to contact traders directly and effectively (Case C-649/17). Thus, while chatbots can enhance service, they cannot replace mandatory human contact options.
AI Chatbots as Supplementary Communication Channels
The CRD mandates that traders disclose their primary contact details before finalizing a contract, yet it does not prohibit the use of AI chatbots as additional communication tools. When chatbots allow consumers to retain durable records of their interactions, including timestamps, businesses are required to inform consumers about this capability. Durable records refer to information stored in an accessible and unalterable medium for future reference, such as emails or downloadable files.
Moreover, certain communications, such as acknowledging a consumer’s right of withdrawal, must be delivered in a durable medium, ensuring that consumers possess a stable and accessible record of essential contractual information.
Human Oversight and the Right to Human Intervention
Legislation within the EU increasingly stresses the necessity of human oversight in AI systems, particularly those classified as high-risk:
- The AI Act, effective from August 2026, mandates human oversight for high-risk AI systems, including tools used to determine eligibility for essential public services (e.g., healthcare or social benefits), credit scoring affecting loan access, and AI utilized in recruitment processes to screen candidates.
- Sector-specific regulations in financial services, such as the Consumer Credit Directive and the Distance Marketing Directive, guarantee consumers the right to human intervention when interacting with automated systems like chatbots.
- The GDPR protects individuals from decisions based solely on automated processing that have significant effects, granting them the right to human review.
Additional Considerations for Businesses
- AI Transparency and User Rights: The AI Act mandates that, starting August 2026, AI providers must inform users when they are interacting with AI, unless it is evident. AI-generated content must be clearly labeled in a machine-readable format, with individuals affected by high-risk AI decisions entitled to clear explanations. These provisions enhance transparency, accountability, and user protection.
- Rankings and Ratings: Under the CRD, companies are required to disclose the main factors influencing the ranking of offers presented by AI chatbots. Chatbots can search for products, services, or information, presenting results based on algorithms that affect consumer choices. The Unfair Commercial Practices Directive (UCPD) prohibits misleading or manipulated reviews and ratings, ensuring they are genuine and presented fairly.
- Accessibility and Non-Discrimination: Deployers of chatbots must consider accessibility for all consumers, including individuals with disabilities, in accordance with the European Accessibility Act, which will apply starting in June 2025. Additionally, businesses must avoid discriminatory practices based on age, gender, ethnicity, or digital literacy.
- Data Protection and Privacy: Interactions with chatbots must adhere to GDPR requirements, emphasizing transparency about data collection and processing, purpose limitation, and data security.
- Liability and Accountability: Traders are fully responsible for all communications with consumers, including those conducted via AI chatbots. Businesses must ensure that chatbot responses are accurate, as they can be held accountable for any misleading or incorrect information provided, especially under the new Product Liability Directive, which takes effect in December 2026.
- Cross-Border and Multilingual Considerations: Traders should clearly indicate the languages their chatbots can operate in. If automatic translation is utilized, they must inform consumers of the expected translation accuracy to manage expectations. According to the UCPD, if a trader communicates with a consumer in a language different from the official language of their country before a purchase, their AI chatbots should provide after-sales service in that same language, unless stated otherwise.
In conclusion, as AI chatbots become an integral part of consumer interactions, compliance with the evolving requirements set forth by the Digital Fairness Act and other regulations is essential. Companies must navigate these changes carefully to not only meet regulatory demands but also to build and maintain consumer trust in an increasingly digital marketplace.
