The Future of Pre-Contractual Information Duties: From Behavioural Insights to Big Data

Abstract

The aim of this article is to reflect upon the future of pre-contractual information duties as a regulatory tool in EU consumer law. Until now information duties or mandated disclosures are among the most popular regulatory instruments in EU consumer legislation. However, a growing body of research from behavioural economics, psychology and neuroscience has questioned the information paradigm that constitutes a hallmark of EU consumer law. While there seems to be a broad consensus that the old information model dating back to the 1970s is no longer viable, it is less clear which regulatory approach shall replace it. This article discusses different alternative approaches that could revive or replace the information-based approach. It is argued that information duties as a regulatory tool can have a future if they adapt to the insights from behavioural research and embrace the possibilities of modern technology.

Following a brief introduction, section 2 outlines the conceptual foundations of the information paradigm and shows how duties of disclosure have become a key feature of EU consumer legislation. Section 3 addresses the limitations of the information-based approach which have been identified by psychological and behavioural research. In section 4 several regulatory alternatives to the current information model are being discussed. Section 5 looks at how in the near future a more technological approach to disclosure based on Big Data analytics could lead to a transformation of the information model from standardized to personalized disclosures.

Keywords: European contract law, European consumer law, behavioral law and economics, nudging, libertarian paternalism, smart disclosures, personalization, personalized disclosures, Big Data

JEL Classification: K00, K12