Vulnerability affects us all. Yet, in the consumer sphere, legislators have often preferred to anchor regulation on the idea of the “average consumer” able to look after their own interests rather than acknowledging vulnerabilities.

Recognition of vulnerability first appeared in the regulated markets, chiefly energy and finance, where protection and intervention not only focussed on the individual and personal characteristics of vulnerable consumers and their change in circumstances but also acknowledged the role that market practices play in vulnerability. By contrast, the Unfair Commercial Practices Directive (UCPD), which finds application in non-regulated markets, only caters for a small subset of vulnerable consumers defined by reference to their personal characteristics. There, much of the most recent scholarship has come to call for a broader conceptualisation of vulnerability to offer more effective protection.

Amidst the myriad of scholarship on vulnerability, spanning many different fields of enquiry, the idea that consumers may be specifically affected by digital markets has started to emerge and be studied. According to Helberger et al.:

In the digital society, vulnerability is architectural because the digital choice architectures we navigate daily are designed to infer or even create vulnerabilities. The vulnerabilities – be they dispositional or occurrent – that consumers can experience are not an unfortunate by-product of digital consumer markets; vulnerabilities are the product of digital consumer markets (Helberger et al., 2021, p.19).

Vulnerability in digital spaces reflects a growing acknowledgement that external elements create, influence, or reinforce vulnerabilities, a phenomenon that Riefa and Saintier have identified as “systemic vulnerability”,Footnote 1 i.e., vulnerability created by the system, vulnerability of the individual that stems from the way in which a system is devised (choice architecture (Thaler & Sunstein, 2009). Choice architecture is a direct illustration in digital parlance and reveals itself as the root cause of many problems (Helberger, et al., 2021, p. 18, note 1).

This present special issue contributes to this strand of enquiry and brings together five papers that were originally presented at the Society of Legal Scholars-funded conference “Vulnerability across Disciplines.” The aim of the conference was to break down disciplinary boundaries and to identify strands of theoretical/practical thinking across the vulnerability theme. Professor Martha Fineman, widely recognised for her vulnerability theory, opened the conference, highlighting that vulnerability is both universal and specific, yet often understood very differently. Drawing upon these themes, the five papers in this special issue demonstrate the varying nature of vulnerability as it morphs through (and beyond) geographical, digital, temporal, structural, and theoretical spaces to appear in new guises and form new understandings of what it means to be vulnerable. This special issue aims to extract these themes by placing vulnerability into the digital context.

All papers included in this issue come to inform the point that the current approach to consumer protection and their vulnerability is not adapted to the specificity of digital markets. Instead of focussing on the definition of vulnerability or searching for the personal characteristics of individuals or groups that render them more vulnerable to a specific set of practices, the papers in this issue are attached to analysing the underlying reasons, the systemic causes of vulnerabilities experienced in those contexts. The papers seek to shed some light on root causes to yield better orientation of intervention.

Systemic failures in digital markets have three main origins: the nature of the digital markets themselves, regulatory failure (the lack of adequate protection being offered as a shield to vulnerability), and enforcement failure (the inability to enforce a rule that would have come to assist the vulnerable). Indeed, in the digital sphere and despite some recognition of vulnerability notably in most recent policy papers, the legislative response remains ill-equipped.

One important issue when accounting for vulnerability is to reflect on the role of different actors in catering for the vulnerable. Much of the discourse is normally centred around the need for the state to intervene. Vulnerability policy is perhaps most advanced in the regulated industries, but even there, it has failed to truly shield consumers in need. Graham shows that this is due in part to the fact that regulators have turned to industry to provide much needed relief. Reflecting in large part along the lines of essential services, Graham considers the successes and failures of regulatory action. While some progress has been made, systemic vulnerabilities still fail those who are in fact digitally excluded. There are clear parallels between digital markets and essential services. Therefore, intervention in digital markets ought to learn from already existing responses and essential services must address vulnerabilities created by digital environments. In this light, one may reflect on the limitations of “outsourcing” the catering for vulnerability to industry, a model that the European Commission has very much replicated when it comes to its regulation of platform content.

Roark and Fox O’Mahony explore the impact of technology on property, showing how through the dematerialisation of land, the landscape of land ownership and housing transactions is being rapidly transformed creating new consumer risks and vulnerabilities that are not yet dealt with by the regulatory framework, or worse are driven by it. For example, Property Technology or PropTech for short is quickly rewriting the technical infrastructure that operationalised and served property law. The deployment of private landlord service platforms able to track rental prices has led to documented rise in rental prices and shortage of rental housing where holiday rental websites have been able to offer owners more lucrative short-term alternatives to long-term rentals. Those changes of course disproportionately impact consumers on lower incomes. The parallel movements, also harnessing technology, to better occupy resources and denounce property ownership and its negative impact on the most vulnerable in society, have not yet been able to offer viable resistance. The transformation through technology of the traditional property landscape and their stakeholders to what the authors refer to as a “network society” requires a different regulatory approach to reconfigure the power balance between state actors and agencies. The authors thus explore Resilient Property Theory to rescale ownership and counter systemic imbalances in property appropriation. The solution, the authors claim, allows a holistic view of the various stakeholders and offers a recalibration of the changing nature of ownership to counterbalance digital vulnerabilities. Roark and Fox O’Mahony thereby capture both systemic and individual vulnerability, with the resultant redistribution of resilience which arise from a market based digital transformation.

Hyde and Cartwright (2023) move into an entirely digital infrastructure, immersing themselves in gaming to scrutinise the way in which players are at risk of exploitation through the use of microtransactions and dark patterns in game. While the UCPD is identified as the main legislation to offer modification of the architecture of games or better control for consumers in game, the now well-documented failings of the definition of the vulnerable in the UCPD come as an obstacle, highlighting how the regulation itself can fail the vulnerable. Hyde and Cartwright link the digital, environmental architecture and regulatory design not just to consumer vulnerability but to the perpetuation of existing dependencies.

Continuing within a similar contextual environment but moving to the specific age-based vulnerability, Cantero Gamito (2023) focuses on the practices of TikTok and their impact on the protection of children using their services. The authors find that the regulatory gap (in terms of legislative, institutional, and procedural rules in place) creates complexity leading to paralysis. The regulatory complexity that accompanies digital markets creates problem hotspots where the GDPR needs to interact with consumer law and fails to offer a coherent solution. This leads to underenforcement of regulation that in turn fails to protect the vulnerable minors using TikTok on a daily basis. It is thus past regulatory failure and into a systemic failure (that of the enforcement machinery) that vulnerability is also found notably in the operation of the Consumer Protection Cooperation framework.

Moving from the specific to the more general, Durovic and Poon focus their inquiry into vulnerability on the fairness of terms in the social media industry. The article shows that Meta and TikTok terms and condition fall short of many of the requirements contained in the Unfair Contracts Terms Directive. The root cause, other than a willingness to exploit consumers, is found in the inability of the Directive to offer viable substantive protections, penalties, and enforcement mechanisms. Here again, we are reminded that vulnerability, once thought of as inherent to the person, is in fact much more conditioned on a failure of the regulatory framework (which includes enforcement).

While this special issue cannot in and of itself offer universal solutions to adapting the general consumer law framework to meet the needs of the vulnerable in a digital environment, it seeks to at least shed light on the other side of the coin, moving the discourse away from the individual and looking into the “system.” It hopes that, as was the case with regulated industry in the past decade, more work can go towards recognising vulnerability in its various forms and iterations and interrogating how best to embed it into policy making.

The five papers in this special issue demonstrate the varying nature of vulnerability even within what may at first appear to be a confined space, that of the digital markets. Thematically, vulnerability appears in a number of guises whether these are geographical, temporal, structural, and theoretical. The interconnection and dependency of the system(s), regulation, and individuals reveal that even in a new digital age, every element is in some way connected and affected by vulnerability. As much as consumers may seem to be the most obvious category to label as vulnerable, traditional approaches to conceiving vulnerability consistently ignore that vulnerability can arise from the very source of expected protection and that the source—the regulator—is exposed to their own vulnerabilities arising from exposure to vulnerable systems (e.g., the property market). This special issue shows that digital markets provide the justification and impetus to find viable, embedded, holistic, and agile approaches to tackle one of the most pressing and universal issues of the modern world: vulnerability.