Op-Ed: “Off- and On-line: Inexperienced Claims Go Digital, and Regulation (Un)follows?” – Cyber Tech

This Op-Ed kinds a part of EU Legislation Reside’s symposium on the Personal Enforcement of European Environmental Legislation and Coverage, which has featured Op-Eds by Clemens Kaupa, Christoph Sobotta, Alexandre Biard, Vasiliki Karageorgou, Markus W. Gehring & Nick Scott, Bolesław Matuszewski & Wojciech Modzelewski, Francesco Maria Damosso, Johan Stagstrup, and Sonam Gordhan. Additional Op-Eds on this matter will observe quickly on EU Legislation Reside.

Inexperienced Claims, a Stress Take a look at for Enforcement within the EU Digital Area

As the fashionable shopper is environmentally acutely aware and promoting typically extols the environmental virtues of services, efficient regulation of each offline and on-line advertising is turning into much more acute. Personal and public enforcement instruments ought to due to this fact make sure the reliability of inexperienced commercials and safeguard their influence on shopper selections and environmental safety. The worldwide economic system is more and more digitalised, and so is promoting. In 2024, 88% of Europeans used the web day by day. In the identical yr, European Union (EU) digital promoting expenditure approached €120 billion, leading to important shopper publicity to on-line commercials. Inside this burgeoning digital ecosystem, inexperienced claims – voluntary statements that an entity, services or products has a optimistic or much less unfavorable influence on the surroundings – now attain shoppers on an unprecedented scale, typically with out being topic to constant scrutiny and enforcement. Enhancing environmental safety in these issues, together with not directly by way of shopper regulation as an ‘autonomous authorized pathway’ (Kaupa, 2025, on this Symposium), requires a mix of public, {industry} initiatives, and strengthened non-public enforcement by people affected by such promoting.

The proliferation of inexperienced claims raises urgent considerations about transparency and accountability in digital promoting, notably contemplating persistent ‘greenwashing’ practices. Greenwashing typically takes the type of false, obscure or insufficiently substantiated inexperienced claims. EU shopper regulation due to this fact considers greenwashing an unfair industrial observe (Article 5 Unfair Business Practices Directive 2005/29/EC (UCPD)), mostly by way of the prohibition of deceptive claims able to distorting shoppers’ transactional choices (Articles 6 and seven UCPD).

On-line platforms have change into the first medium by way of which inexperienced claims flow into, exercising decisive management over the visibility, focusing on, and dissemination of promoting content material. These platforms are neither impartial conduits of company communications nor conventional regulators. Relatively, they’re structural intermediaries whose design selections and enforcement practices more and more form the effectiveness of EU shopper and environmental regulation.

Whereas greenwashing practices are prohibited below EU shopper and promoting regulation, enforcement has been undermined within the digital surroundings. The web regulatory ecosystem suffers from a structural hole: platform governance, promoting self-regulation, and public enforcement proceed to function in parallel fairly than in live performance. A hybrid system of self-regulatory organisations and public authorities seeks to guard shoppers from unfair industrial practices however can’t act successfully with out the cooperation of the platforms that host and monetise digital promoting. The result’s a fragmented enforcement panorama through which deceptive inexperienced claims could also be recognized however not constantly curtailed.

This misalignment emerges at a very consequential second. The digital and inexperienced transitions function prominently on the EU’s coverage agenda, but the governance of on-line inexperienced promoting stays institutionally disjointed. The enforcement practices associated to deceptive inexperienced claims present a check case of the extent to which the strain between the EU’s digital and inexperienced priorities might be resolved, and the potential of private and non-private collaboration on the intersection of shopper safety and environmental coverage might be realised. Whereas non-public enforcement could be a great tool complementing different strategies, it has been instructed that ‘non-public actions alone can’t make sure the attainment of sustainability targets’. In each dimensions, the problem lies not in any regulatory gaps, however fairly in the potential for meaningfully coordinating between regulatory methods and actors, together with non-public events.

As a place to begin for such a dialogue, this quick piece explores how the UCPD, the Digital Companies Act Regulation (EU) 2022/2065 (DSA) and promoting self-regulatory organisations (SROs) might be aligned to shut the enforcement hole. By analyzing the roles of public authorities, platforms, and self-regulatory our bodies, we spotlight pathways for cooperation that guarantee inexperienced claims are each truthful and enforceable on-line, mirroring the protections that exist offline.

Defending the Inexperienced Digital Client

Any try to deal with on-line greenwashing should begin with scrutinising the connection between EU shopper safety regulation and digital regulation. The UCPD – the spine of the EU’s shopper safety structure – was lately amended by the Empowering Customers Directive 2024/825/EU (ECD) to incorporate clearer definitions and authorized necessities for environment-related communications. Whereas the UCPD gives the substantive commonplace for assessing deceptive inexperienced claims and particular person rights for shoppers harmed thereby (Article 11a(1) UCPD), the DSA more and more determines how and whether or not these requirements are enforced within the internet marketing ecosystem.

The DSA adopts a broad definition of promoting, encompassing each industrial and non-commercial messages (Article 3(r) DSA). This contrasts with the commercial-practice-based strategy of the UCPD, below which greenwashing enforcement has relied virtually solely on deceptive inexperienced claims that qualify as industrial in nature below EU shopper regulation.

The DSA establishes a horizontal framework of middleman accountability (together with to private-party service recipients, Article 54 DSA) for the way on-line platforms handle and reply to unlawful content material, explicitly aimed toward safeguarding elementary rights, together with shopper safety (Article 1(1) DSA). By way of its transparency, due diligence, and accountability obligations, the DSA has reshaped the governance of on-line data flows. As a result of digital promoting is itself a type of data transmission, the DSA inevitably impacts how promoting content material – together with inexperienced claims – is moderated, monitored, and eliminated.

Beneath the DSA, promoting content material qualifies as ‘unlawful content material’ (Article 3(h) DSA) the place it infringes EU or nationwide regulation, together with shopper safety guidelines. Deceptive inexperienced claims that breach the UCPD might due to this fact even be addressed by way of the DSA’s notice-and-action mechanisms. This reciprocity strengthens the precept of medium neutrality: practices prohibited offline shouldn’t change into lawful merely as a result of they seem on-line.

Internet hosting companies, together with on-line platforms, profit from a conditional exemption from legal responsibility for saved unlawful content material, together with deceptive inexperienced claims, supplied they lack precise information of illegality, and act expeditiously as soon as such information is obtained (Article 6 DSA). The DSA specifies a number of pathways by way of which platforms might purchase this information, together with voluntary own-initiative investigations (Article 7 DSA), binding orders from judicial or administrative authorities (Article 9 DSA), substantiated notices submitted by people or entities (Article 16 DSA), not least trusted flaggers (Article 22 DSA).

These mechanisms mirror the DSA’s largely reactive enforcement mannequin. Platforms aren’t topic to basic monitoring obligations (Article 8 DSA), and enforcement is usually triggered by way of exterior signalling. Regardless of enhanced transparency and accountability necessities, platforms retain discretion in assessing notices and figuring out applicable responses. In observe, the effectiveness of shopper safety on-line relies upon closely on the standard, credibility, and coordination of the indicators that platforms obtain.

Importantly, the DSA doesn’t specify which authorities might subject such indicators, nor does it confine them to a selected regulatory area. Client safety authorities designated below the UCPD might due to this fact be thought of to fall squarely throughout the DSA’s scope. The UCPD envisages the chance for Member States to advertise enforcement cooperation between administrative, judicial and personal authorities (by way of their codes of conduct), (Article 11 UCPD). These codes – voluntary requirements developed and utilized by sector-wide, privately led our bodies generally known as self-regulatory organisations (SROs) – play a complementary function in shaping compliance with shopper safety regulation.

Learn collectively, the enforcement logics of the DSA and the UCPD recommend that nationwide authorities, working in tandem with promoting SROs, might assist channel deceptive inexperienced claims into the DSA’s notice-and-action framework. With out changing public enforcement, non-public self-regulatory actors thus purchase a structurally enhanced function within the governance of inexperienced claims on-line.

Promoting Self-Regulation within the Shadow of Public Enforcement

Self-regulatory organisations (SROs) – such because the Dutch Promoting Code Basis – have lengthy supplied industry-led checks on promoting to make sure it’s authorized, first rate, trustworthy, and truthful. They achieve this primarily by creating promoting codes of conduct and adjudicating complaints regarding their utility. As such, SROs occupy an area between non-public ordering and public authority.

Promoting self-regulation operates by way of a multilayered system spanning worldwide and nationwide ranges. The principle supply of baseline ideas for accountable promoting is the Worldwide Chamber of Commerce (ICC) Code, with nationwide SROs retaining discretion to tailor these ideas to nationwide contexts. This decentralised structure has historically allowed promoting self-regulation to reply to cultural and market variations. Nonetheless, the cross-border nature of digital promoting has put a pressure on the system; whereas internet marketing expands the scope of SRO monitoring, its skill to make sure compliance throughout jurisdictions stays restricted.

However their identify, SROs aren’t purely self-regulatory entities. Relatively, they’re a part of co-regulatory preparations formed by, and coordinated with, public enforcement. In its Inexperienced Paper paving the way in which for the Unfair Business Practices framework, the European Fee envisaged a outstanding function for self-regulation in addressing unfair industrial practices. Throughout the negotiations for the Framework Directive, nonetheless, the language surrounding self-regulation misplaced a lot of its preliminary assertiveness, in the end solely implicitly favouring a co-regulatory mannequin.

The UCPD recognises that codes of conduct might scale back the necessity for administrative or judicial intervention and help authorities in assessing unfair industrial practices (Recital 20 UCPD). On the identical time, it leaves Member States discretion as as to if courts or administrative authorities might require prior recourse to complaint-handling mechanisms, together with these operated by SROs (Article 10 UCPD). This discretion has resulted in divergent nationwide approaches, with some jurisdictions formalising cooperation between private and non-private authorities, and others counting on extra tacit – and even minimal – types of interplay. For the needs of personal enforcement, it’s clear from Article 10 UCPD that having recourse to such prior complaint-handling mechanisms doesn’t preclude entry to administrative or judicial enforcement.

Article 6(2)(b) UCPD introduces one of many Directive’s most far-reaching provisions with respect to the authorized results of self-regulation, by establishing {that a} dealer’s failure to adjust to a code of conduct to which it has publicly dedicated might quantity to a deceptive industrial observe. The UCPD steering has nonetheless clarified that non-compliance with a code doesn’t, in itself, mandate the imposition of sanctions or legal responsibility, underscoring the supportive fairly than substitutive operate of self-regulation. By the identical logic, compliance with a code of conduct doesn’t robotically confer immunity from the applying of the UCPD.

The function of SROs below the UCPD is especially related for inexperienced claims. Deceptive environmental promoting qualifies as an unfair industrial observe below the UCPD, a framework that has lately been strengthened (Article 1(1)(b), 1(2), and 1(3)) ECD) to deal with greenwashing extra explicitly. On the identical time, the Fee’s proposal for a Inexperienced Claims Directive – supposed to offer extra detailed, claim-specific guidelines – has reached a legislative deadlock. Within the absence of this lex specialis, the UCPD stays the first authorized reference level, additional elevating the significance of co-regulatory enforcement mechanisms.

In gentle of the evolving shopper safety acquis, SROs have began revising their inexperienced claims steering to align it extra carefully with EU provisions. In 2023, the 26 European promoting self-regulatory organisations obtained almost 56,000 complaints, half of them referring to internet marketing, with deceptive inexperienced claims gaining an growing – although nonetheless modest – share.

Compliance with choices of SROs relies upon totally on voluntary cooperation, as these non-public our bodies lack binding enforcement powers. Their effectiveness, due to this fact, will depend on {industry} buy-in, and on working within the shadow of public enforcement, with reputational penalties and the potential for escalation to public authorities underpinning compliance. But, the effectiveness of this mannequin will depend on management over promoting channels, and that is the place digitalisation dangers disrupting an already fragile steadiness.

Digital Platforms and the Greenwashing Enforcement Hole

Regardless of their central function within the dissemination and management of promoting, digital platforms stay solely weakly embedded within the promoting self-regulatory ecosystem. As hosts of most promoting flows within the digital economic system, their cooperation is vital for efficient enforcement. In contrast to conventional media, nonetheless, platforms function at a transnational scale that complicates their integration into nationally rooted self-regulatory methods. When SROs determine breaches, enforcement continuously will depend on the cooperation of third-party platforms that aren’t formally certain by nationwide self-regulatory choices.

There are a number of creating efforts to deal with this hole. Google and Meta – two of the bigger on-line platforms worldwide – have joined the European Promoting Requirements Alliance (EASA), the umbrella organisation of European promoting SROs. In its promoting insurance policies, Google requires advertisers to adjust to native legal guidelines, particularly referring to an inventory of SROs’ codes of conduct. Whereas the burden of proof for compliance with these codes is on the advertisers, the platform retains the correct to behave – together with, however not restricted to, proscribing or blocking adverts or suspending them – within the occasion of non-compliance.

Advertiser compliance with these insurance policies is ensured by way of a mix of Synthetic Intelligence and Human Analysis, and will depend on quite a lot of sources to find out whether or not an advert breaches inside or exterior laws. Whereas not particularly mentioning SRO choices, these are broadly referred to within the class of regulatory warnings and rulings.

These steps sign platforms’ willingness to interact with promoting self-regulation. But, their sensible implications stay restricted. As EASA doesn’t function a stand-alone code of conduct however fairly leaves substantive rule-setting and enforcement to nationwide SROs, tech participation in EASA doesn’t result in, in and of itself, legally enforceable anchoring to particular guidelines. Personal events, NGOs and/or public authorities will nonetheless want to determine a breach of national-level requirements to make their case.

Connecting Platforms, SROs and EU Client Authorities

With out efficient cooperation between EU digital and shopper safety regulation, and the promoting self-regulatory framework, deceptive inexperienced claims proceed to evade constant enforcement on-line. What’s lacking just isn’t regulation, however a connective tissue linking these three regulatory domains. Inside such a framework, on-line platforms act as operational gatekeepers, UCPD-designated authorities present authorized backstops and escalation pathways, and self-regulatory organisations operate as first-stage screeners and signallers. In the meantime, non-public events stay constrained by the procedural and monetary challenges of bringing their very own actions within the atypical courts.

The next paragraphs study how platforms, public authorities and SROs may contribute to constructing a extra coherent enforcement linkage within the digital promoting ecosystem.

Platforms: From Passive Hosts to Structured Enforcement Companions

Beginning with on-line platforms, a primary step must be to articulate extra clearly, inside their phrases and circumstances, the insurance policies relevant to inexperienced claims. This may very well be achieved by aligning platform promoting insurance policies extra explicitly with UCPD requirements and related SRO codes of conduct, whether or not by reference or incorporation. Whereas itemizing compliance obligations already represents good observe, this strategy may very well be strengthened by expressly figuring out deceptive inexperienced claims as prohibited conduct below platform insurance policies, supported by concrete and accessible examples. Such clarification would enhance authorized certainty for advertisers and improve person understanding of what constitutes greenwashing.

Past coverage design, platforms may additional refine the instruments used to detect potential breaches, together with by bettering the identification of deceptive inexperienced claims and making certain applicable human assessment in complicated circumstances. Synthetic intelligence-based instruments, constructed on a transparent classification of deceptive inexperienced claims as prohibited practices below the UCPD, might assist the detection of illegal content material. On this context, cooperation with SROs and public authorities to change finest practices for balancing freedom of expression with shopper safety could be essential.

On this regard, the Intermediaries and Platforms Rules pilot launched by the British promoting SRO might symbolize a mannequin for EU Member States. Beneath this initiative, platforms commit to making sure the visibility of advertisers’ contractual obligations below the nationwide code, swiftly implementing self-regulatory choices the place advertisers fail to conform, and selling consciousness of the self-regulatory system amongst each advertisers and the general public. These commitments illustrate how bilateral preparations between platforms and SROs can generate concrete contractual obligations, enabling internet hosting companies to behave upon breaches of personal codes of conduct.

Public Authorities: Positioning Self-Regulation Inside the Enforcement Chain

Whereas platforms occupy a central place within the enforcement chain, public authorities stay important in offering authorized backstops and escalation pathways. Relatively than increasing the regulatory framework, enforcement efforts ought to give attention to strengthening coordination throughout the present authorized structure. Cooperation between authorities designated below the UCPD and on-line platforms may very well be strengthened by way of the unlawful content material signalling mechanisms envisaged below the DSA, making certain that judicial and administrative choices translate into efficient on-line enforcement.

Past direct platform engagement, public authorities may additionally reinforce the screening and signalling function of SROs in relation to deceptive inexperienced claims. Because the UCPD leaves Member States the discretion to strengthen enforcement cooperation amongst public, judicial, and personal authorities, particular person jurisdictions decide whether or not, and to what extent, such cooperation is formally structured.

The Netherlands illustrates how such coordination might be formalised by way of an institutional association. There, the UCPD-designated public administrative physique and the nationwide SRO have signed a cooperation protocol, outlining the circumstances for mutual help. The protocol recognises the SRO’s first-stage operate in dealing with complaints, whereas offering for escalation to the general public authority in circumstances of systemic infringements or persistent non-compliance. This dual-track mechanism – whereas not explicitly labelled as such – permits for a hierarchical division of labour, with out excluding the potential for resorting to horizontal consultations the place applicable.

Lastly, proactive public enforcement by way of sector-wide investigations must be maintained and additional developed. Such focused investigations – as those carried out, for instance, within the Netherlands and France – present a essential counterbalance to complaint-based methods, reinforcing deterrence and systemic oversight. On the EU stage, coordinated sector-wide screenings can additional strengthen this strategy by figuring out deceptive inexperienced claims that breach shopper safety regulation, as illustrated by the latest sweep focusing on main EU airways. These monitoring workouts complement the primary port-of-call operate carried out by SROs, making certain that enforcement doesn’t rely solely on particular person complaints. Additional, such monitoring can strengthen the function of NGOs and/or non-public events in pursuing perpetrators for damages arising from breaches of shopper regulation (Kaupa, 2025; Biard, 2026, each on this Symposium).

Self-Regulatory Organisations: From Norm-Setters to Enforcement Catalysts

SROs themselves play a key function in consolidating this connective framework. At each European and nationwide ranges, efforts to combine digital platforms extra absolutely into self-regulatory governance constructions ought to proceed. Whereas some main platforms already take part, the broader ecosystem of digital intermediaries stays solely partially engaged.

Nearer cooperation within the evaluation of suspected infringements may take the type of bilateral contractual preparations between nationwide SROs and platforms, offering for adherence to codes of conduct, and fast-track consideration of personal adjudications. Choices by SROs may operate as credible indicators throughout the DSA’s notice-and-action framework, with out prejudging platforms’ impartial evaluation of the alleged illegality of the content material. In observe, platform intervention would stay focused, specializing in circumstances the place voluntary compliance fails. On the identical time, the usage of Synthetic Intelligence, with out pre-empting human evaluation, must be explored to strengthen SROs’ monitoring capability concerning inexperienced promoting on on-line platforms. Such instruments, already examined by some nationwide SROs, can assist the identification of doubtless non-compliant commercials, and help SRO workers in assessing adherence to relevant codes of conduct.

Lastly, worldwide our bodies, such because the ICC and EASA, ought to proceed selling a baseline stage of harmonisation amongst nationwide inexperienced claims requirements. Within the seemingly absence of a devoted Inexperienced Claims Directive, such comfortable harmonisation might play an essential gap-filling function, and scale back fragmentation, whereas facilitating broader platform engagement with self-regulatory norms.

Making Inexperienced Claims Enforceable within the Digital Age

The persistence of deceptive inexperienced claims on-line doesn’t mirror an absence of authorized requirements, however a failure to translate the regulatory framework into efficient digital enforcement. The UCPD, the DSA, and promoting self-regulation mix right into a complete enforcement structure for the EU’s digital promoting area. What stays to be performed is to attach these frameworks in observe, so that personal assessments, public authority choices, and platform processes function as a part of a single enforcement chain. The prognosis, due to this fact, factors in the direction of a coordination glitch fairly than to a regulatory hole. Making certain that what’s prohibited offline can also be enforceable on-line is in the end a query of regulatory coordination, not of regulatory growth, and a check of the EU’s capability to control digital markets according to its environmental and shopper safety goals.