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10 Cambridge L. Rev. 34 (2025)
Beyond Transparency: A Case for Risk Warnings in Content Personalisation under EU Law

handle is hein.journals/cambrilv10 and id is 184 raw text is: 34 Cambridge Law Review (2025) Vol 10, Issue 2 Cambridge Law-Review (2025) Vol 10, Issue 2, 34-60 Beyond Transparency: A Case for Risk Warnings in Content Personalisation under EU Law KEISUKE NOMA* ABSTRACT This article argues that European Union ('EU') law should require online service providers employing content personalisation ('CP') to display user-facing risk warnings ('CP Warnings'), inspired by health warnings on tobacco packaging. CP (the tailoring of digital content based on users' data) is pervasive across online platforms, from targeted advertising to recommendation systems. While its prevalence has grown, so too have concerns over its potential to cause addiction and manipulation. Yet, EU data protection law does not require that users be informed of such risks. The article contends that this gap reflects a libertarian conception of transparency which assumes that individuals can make rational decisions upon the disclosure of internal processing practices. Challenging this premise, the article argues both that CP Warnings should and can be accommodated within EU data protection law as a form of libertarian paternalism. Section II defines CP Warnings (i.e. salient risk notices and a narrow constraint on counter-messaging) by analogy with tobacco warnings. Section III demonstrates the necessity of CP Warnings by outlining the material risks posed by CP and the inadequacy of current legal safeguards. Section IV assesses the permissibility of mandating such warnings, drawing an analogy with the EU's tobacco product regulation. Through a detailed analysis of the Court of Justice of the European Union ('CJEU') case law, the article evaluates whether CP Warnings-both positive (mandatory notification) and negative (restrictions on promotional language)-have a proper EU legal basis, satisfy subsidiarity, and are compatible with proportionality and the right to freedom of expression under the Charter of Fundamental Rights of the European Union ('CFR'). Section V synthesises the argument, explaining how CP Warnings move the EU's approach beyond transparency towards a libertarian paternalistic model of risk communication, and concludes that the EU legislature should adopt CP Warnings. Keywords: content personalisation, tobacco products regulation, risk warning, transparency, libertarian paternalism * Attorney-at-law (Japan); LLM (University College London). I am grateful to Professor Orla Lynskey for valuable comments on an earlier draft. All errors are mine.