In the study 'Update the Unfair Contract Terms directive for digital services', which Marco Loos and Joasia Luzak wrote for the European Parliament, they analyse common terms in contracts of digital service providers. They also indicate when these terms may significantly disturb the contractual balance of rights and obligations between the parties to the detriment of consumers, and should therefore be covered by the Unfair Contract Terms Directive.
Current Directive from 1993
The current Unfair Terms Directive was adopted in 1993. That was before digital services became commonplace in modern society, and before big data exacerbated the contractual imbalance between digital service providers and consumers.
The study shows that there is a need to amend this Directive to better protect consumers online from unfair contract terms from digital service providers. An amended Directive would also give digital service providers more legal certainty about which terms and conditions are considered fair.
Black or grey list
Loos and Luzak have identified several terms currently used by digital services which, according to them, are (almost) always unfair when used in contracts with consumers. However, they cannot or only indirectly be associated with items on the current indicative list.
Loos and Luzak recommend blacklisting these provisions or starting a grey list of terms deemed unfair when used in a contract with a digital service provider. They also recommend strengthening the sanction for the use of terms that are unfair.