A Matter of Time. Digital-Financial Consumers’ Vulnerability in the Retail Payments Market

Abstract

This Article aims to conceptualize the figure of the digital-financial payment consumer, which combines two separate -and ex se relevant- sources of vulnerability: digital vulnerability and financial vulnerability. The first part, -after summarizing the legal framework on digitizing payment, the social context and the policy lines- deals with the need of applying the concept of “neutrality of regulation” to avoid possible conflicts of rules between interconnected ecosystems, such as digital payments, digital platforms and blockchain. Having consumer protection in mind, it also addresses the cumulative and coherent application of different sets of rules. The second part looks in more detail at digital-financial consumer vulnerability, describing the possible implications at regulatory level and the consequences that this new kind of vulnerability brings at the level of political choices, the obligations of financial players and the conduct of a consumer who is part of a payment service contract, adopting both the point of view of public law (in terms of policy choices) and private law (intersubjective relations). The article concludes that, among the different sources of vulnerability, age appears to be the key issue when assessing the vulnerability of digital payment consumers. Once detected, this new kind of vulnerability is specifically relevant to the banks’s disclosure obligations (which should be synthetic and selective), and in terms of product design and product governance (companies should “tailor” their products specifically to the group’s customer profile they intend to reach). On the consumer side, the same behaviour should be assessed differently depending on the specific vulnerability of the consumer involved. The paper deals here with the level of gross negligence in case of unauthorized digital payment (phishing). Instant digital payments, digital platforms, blockchain, fraud, liability, consumer protection, speed, security, loss allocation, vulnerability, financial vulnerability, digital vulnerability, financial inclusion, grey digital divide