The Average Online Consumer. ​A proposal for a new approach to assessing the fairness of online behavioral advertising under the Unfair Commercial Practices Directive

The Unfair Commercial Practices Directive (hereafter: UCPD) contains a normative benchmark, called the average consumer benchmark, which depicts the average consumer as the ‘reasonably well-informed and reasonably observant and circumspect’ consumer. It is used as a test to see whether a commercial practice, offline or online, is to be considered as unfair or misleading. However, it has been criticized for not reflecting reality as it provides for a consumer image that reflects the expected behavior of an average consumer rather than his real behavior. Whether the average consumer notion is an appropriate benchmark for the offline world will not be questioned in this paper, but it is argued that the socio-empirical image of the online consumer, targeted individually by online behavioral advertising (hereafter: OBA), is even further away from this normative image than the socio-empirical image of the offline consumer and therefore the average consumer notion is highly inappropriate as a test to assess the fairness of OBA. For that reason, a proposal is made for a new approach to assessing the fairness of OBA under the UCPD.