Hypernudging in the changing European regulatory landscape for digital markets

Abstract

The European regulatory landscape for digital markets is undergoing a transformative change. There is an observed shift toward the protection of public values and fundamental rights, as the market mechanism and market values that traditionally led regulatory processes in digital markets seem to have fallen short. In the context of the user-centric digital economy, a clear commitment to safeguarding citizens' interests is ever-more salient. This article provides a comprehensive account of hypernudging—dynamically personalized user steering, which represents the next generation user influencing techniques online, with the potential to lead to multifaceted individual and collective harms. However, problematizing the phenomenon for digital policy purposes is not a straightforward task. Due to the complexity and opaqueness of its underlying mechanisms and effects, policymakers are operating under conditions of uncertainty, necessitating a shared understanding of what impact hypernudging has on users as well as crafting a shared vision of values that ought to be embedded and safeguarded in digital choice architectures. To highlight the developing European approach in relation to hypernudging, the assessment of the recent legislative initiatives—the Artificial Intelligence Act, the Digital Markets Act, and the Digital Services Act—showcases underlying learning opportunities for addressing emergent challenges.