The dynamic development of the computer games market has led to a significant change in the monetization models used by game producers and publishers. The traditional sales model, based on a one-time purchase of a product by the consumer, has been largely replaced by solutions based on long-term user engagement and generating revenue through micropayments (microtransactions). Mechanisms known as loot boxes, consisting in the paid purchase of virtual packages with random content.

Although initially perceived as a means of enhancing gameplay, this mechanism is currently the subject of intense legal, economic, and social debate. It is increasingly being pointed out that the design of loot boxes utilizes psychological mechanisms similar to those that have been present in traditional gambling games for many years. The random nature of the reward, the uncertainty of the outcome, the “near miss” effect, the limited availability of certain items, and the use of dynamic animations intended to enhance the user’s emotional engagement all contribute to the blurring of the line between entertainment and gambling mechanisms.

Additional controversy stems from the fact that the vast majority of modern games using loot boxes are also aimed at minors. Unlike traditional gambling games, participation in these mechanisms does not require a specific age or meeting specific formal requirements. In practice, this means that random monetization mechanisms are also used by children and adolescents, who, due to their stage of psychological development, are particularly susceptible to the influence of behavioral design techniques and so-called dark patterns).

In recent years, the issue of loot boxes has ceased to be analyzed solely through the prism of gambling law. Regulations concerning consumer protection, digital services, and child safety in the online environment are gaining increasing importance. Discussions at the European Union level indicate that the future legal framework may be based not only on classic definitions of games of chance but also on instruments to combat manipulative practices and ensure a high level of protection for consumers using digital services.

At the national level, the problem remains equally relevant. Polish lawmakers have not yet decided to introduce a separate definition of loot boxes into the Gambling Act of 19 November 2009. This does not mean, however, that these mechanisms remain entirely outside the scope of existing regulations. In practice, administrative bodies assess each specific business model on a case-by-case basis, analyzing whether its design meets the statutory definition of gambling. At the same time, the development of the secondary market for trading in virtual items, particularly so-called skin gambling , is creating new interpretative challenges that the legislature did not anticipate when enacting the current regulations.

The changes introduced by the PEGI rating system in 2026 provided an additional impetus for reassessing the current regulations. The revised rules for classifying games with paid random mechanisms confirm the growing awareness of the risks associated with the use of loot boxes, especially for underage users. Although the PEGI rating is not a source of generally applicable law, its practical importance for the European market remains significant and may influence both the distribution of games and the future direction of legislative changes.

The purpose of this article is to analyze the current legal status of loot boxes under Polish and European Union law, taking into account recent regulatory changes, the practices of administrative bodies, and the experiences of selected European countries. Particular attention will be paid to whether the current regulations effectively protect consumers from mechanisms based on randomness and whether the current regulatory model meets the challenges of the modern digital economy.

The essence of loot boxes and their functioning models

The concept of a lootbox has not yet been defined in either Polish or European Union law. However, in the literature and by public institutions, it is generally accepted that a lootbox is a mechanism whereby the user obtains, for a fee or free of charge, a virtual package containing items whose contents remain unknown until opened. A characteristic element of this solution is randomness – the user has no influence on the item they receive, and the probability of obtaining individual rewards is determined by the game developer or platform operator.

At the definitional level, however, it should be emphasized that the term “lootbox” encompasses a wide variety of business models, the legal assessment of which cannot be uniform. Public debate often equates all mechanisms based on randomness with gambling, while from a legal perspective, individual solutions differ in both their economic structure and the degree of risk to the consumer. It is precisely this diversity that means that assessing the compliance of lootboxes with applicable regulations requires an analysis of the specific operational model, not just the presence of a random element.

The most classic model occurs in games where lootbox content is limited solely to cosmetic items, such as skins , animations, character outfits, or visual effects. These items do not affect gameplay or increase the player’s chances of success. They are intended solely for aesthetic purposes, allowing the user to personalize the appearance of their character or equipment. Such solutions were long considered relatively safe from a consumer protection perspective, but the development of secondary markets for trading virtual items has significantly changed their economic significance.

A good example is the Counter-Strike series, where weapon skins initially served only a visual purpose. Over time, however, a robust secondary market developed around these items, allowing them to be sold for real money. Consequently, the value of some virtual items began to reach several thousand, or even several dozen thousand, and in exceptional cases, several hundred thousand euros. In practice, this means that a randomly acquired item can have a tangible financial value, even though the game developer itself does not officially allow for its sale. The existence of an external market is one of the main arguments raised in the discussion on the classification of such mechanisms as potentially akin to gambling.

Loot boxes used in sports games, such as EA SPORTS FC Ultimate Team, are of a different nature. In this model, users purchase virtual packs containing player cards, coaches, or other team items. Unlike skins in games like Counter-Strike, acquired items directly impact gameplay. Acquiring rare players can increase a team’s competitiveness and improve player performance. Although the developer publishes information regarding the probability of receiving rewards in a given category, the user still doesn’t know the contents of a specific pack at the time of purchase, and the decision to purchase is based on a random mechanism.

Yet another model is found in so-called gacha games, extremely popular, especially in Asian markets and in the mobile gaming segment. This mechanism is based on randomization of characters, equipment, or other items necessary for further progression in the game. A characteristic feature of gacha systems is their close connection to long-term user monetization. Players are encouraged to repeatedly make micropayments to obtain exceptionally rare characters or items, the probability of obtaining which can be extremely low. The literature indicates that these solutions most fully utilize the mechanisms of behavioral economics and the psychology of addiction.

However, the most controversial are third-party platforms that enable the trading of virtual items and participation in games of chance that use items from video games as a form of currency. These services operate independently of game developers, leveraging the existing market for skins or other digital goods to organize mechanisms reminiscent of classic casino games. Users deposit funds or use their virtual items to participate in lotteries, roulette, duels, or other games based on chance. Unlike traditional loot boxes offered by game producers, the participant’s goal is not only to obtain a specific item but often to achieve a tangible economic benefit resulting from the possibility of reselling it.

From a legal perspective, the differences between the presented models are crucial. Not every mechanism employing an element of randomness automatically leads to its classification as gambling. Factors that should be assessed include, first and foremost, the potential for financial gain, the existence of a secondary market, the method of financing participation, the possibility of withdrawing funds, and the actual impact of randomness on achieving a specific outcome. In practice, this means a case-by-case analysis of the specific business model, rather than adopting a uniform classification for all types of loot boxes .

This approach is also reflected in the practice of many European countries. Both administrative bodies and courts are increasingly moving away from abstract assessments of the lootbox mechanism itself, focusing instead on analyzing their actual operation and impact on consumer interests. Consequently, the current legal debate no longer revolves around the question of whether lootboxes as a category should be considered gambling, but rather which monetization models justify their inclusion in a specific regulatory regime.

Loot boxes and the definition of gambling in Polish law

Assessing the compliance of lootbox mechanisms with Polish law requires, above all, an analysis of the provisions of the Gambling Act of 19 November 2009. Although the legislature has not yet decided to introduce a separate definition of lootboxes, this does not mean that these mechanisms remain outside the scope of applicable regulations. On the contrary, in practice, their legal classification depends on whether the specific operating model meets the criteria for one of the games specified in the Act.

The basic premise of the Gambling Act is to subject activities in which the outcome depends on chance to a specific regime, and the participant gains the opportunity to obtain a specific financial or material benefit. The Act does not use the term “lootbox” because it was enacted at a time when modern computer game monetization models were practically nonexistent. This necessitates a functional interpretation, taking into account the economic nature of the mechanism in question, not just its name or the technical solutions adopted by the game developer.

A key element of most loot boxes is undoubtedly randomness. The user making the purchase neither knows the contents of the package nor has the ability to influence the outcome of the drawing. However, the mere presence of a random element is not sufficient to classify a given mechanism as gambling. In practice, the nature of the prize received by the participant and the ability to assign it a real economic value are equally important.

This is where a fundamental difference between classic loot boxes offered by game developers and the mechanisms used by third-party platforms for trading virtual items becomes apparent. If the item obtained through a draw has a purely aesthetic function and cannot be legally exchanged for cash or used outside of the game environment, the arguments for classifying such a mechanism as gambling are significantly weaker. The situation is different when the item is de facto a property that can be freely traded on the secondary market, yielding a real financial benefit.

In practice, the greatest controversy surrounds so-called skin gambling. In this model, users use items obtained in-game as a means of participating in subsequent games of chance organized by third parties. Skins, which were originally purely cosmetic, are beginning to function as a kind of digital currency with measurable economic value. This mechanism leads to a situation in which participants risk losing items of real-world value in exchange for the opportunity to win an even more valuable reward. This structure bears a much greater resemblance to classic gambling games than the traditional micropayment systems used by game developers.

At the same time, caution should be exercised before drawing too far-reaching conclusions. The mere existence of a secondary market does not automatically mean that every loot box should be classified as gambling. From a legal perspective, a case-by-case analysis of the entire business model is necessary, including, among other things, the method of acquiring virtual items, the possibility of their resale, the role of the game producer, the scope of control over the trade in digital assets, and the actual economic significance of the rewards. Consequently, two mechanisms utilizing an identical element of randomness may be subject to entirely different legal assessments.

This position is also reflected in the practice of Polish administrative bodies. To date, there has been no established practice of automatically classifying all loot boxes as gambling. Authorities focus instead on analyzing specific business models and assessing whether they meet the requirements of applicable regulations. This approach reflects the nature of the Gambling Act, which uses functional definitions, leaving authorities considerable scope for assessing individual factual circumstances.

In this context, the practice of entering certain online platforms into the Register of Domains Used to Offer Gambling Games in Contravention of the Act has become particularly significant. However, such an entry does not mean that all platforms utilizing the element of randomness conduct illegal activities. Each decision is preceded by an assessment of the specific operational model of the given service. Consequently, it cannot be assumed that the lootbox mechanism itself has been deemed illegal in Poland. It is not the abstract technical structure that is being assessed, but rather its practical application.

Under current law, it seems more appropriate to ask not whether loot boxes per se constitute gambling, but which of their numerous operating models demonstrate characteristics that justify the application of the provisions of the Gambling Act. This approach avoids oversimplification and better reflects the reality of the digital market, where solutions with widely varying levels of risk to consumers coexist.

At the same time, it should be noted that even if a given mechanism does not meet the criteria for gambling within the meaning of the Act, this does not mean there is a lack of legal oversight. Modern regulations increasingly refer to consumer protection instruments, counteracting manipulative practices, and ensuring the safety of children using digital services. Therefore, analysis of loot boxes cannot be limited solely to gambling law. Regulations regarding consumer protection, digital services, and designing interfaces in accordance with fair trading principles are gaining increasing importance, and in many cases, they may prove to be a more effective tool for protecting users than traditional gambling law instruments.

Loot boxes as a challenge to consumer protection law and the regulation of digital services

Although the debate surrounding loot boxes has for many years focused primarily on gambling law, a shift in regulatory direction is now becoming increasingly apparent, both at the national and European Union levels. Contemporary challenges related to random mechanisms in computer games concern not only the classification of specific models as gambling, but also the compliance of the practices employed with the principles of consumer protection, the protection of minors, and the fair design of digital services.

This change is primarily due to the development of the digital economy. The mechanisms used by game producers are increasingly based not on traditional product sales, but on long-term user engagement and gradual increase in spending through appropriately designed psychological solutions. This phenomenon is referred to in the literature as behavioral monetization, or monetization that leverages knowledge from cognitive psychology and behavioral economics. The goal of such mechanisms is not simply to facilitate a purchase, but to create an environment that encourages users to make subsequent purchasing decisions impulsively or emotionally.

Of particular importance in this regard are so-called dark patterns, referred to in Polish literature as manipulative or deceptive design patterns. These design solutions exploit the workings of human perception and decision-making processes to induce behaviors that are beneficial to the entrepreneur, but not necessarily aligned with the consumer’s true interests. In the case of loot boxes, these can take a variety of forms – from counters counting down the time until the end of a promotion, through messages about the limited availability of specific rewards, to elaborate animations that enhance the emotional experience of opening the packages.

These mechanisms are not coincidental. Psychological research indicates that a reward system based on a variable ratio reinforcement schedule is one of the most effective ways to maintain long-term user engagement. This same mechanism has been used for many years in classic gambling games, where the unpredictability of rewards maintains a high level of motivation for subsequent attempts. In the case of loot boxes, this mechanism is transferred to the computer gaming environment and combined with an attractive audiovisual setting and the ability to immediately make another purchase.

From the perspective of consumer protection law, a crucial question is whether the use of such solutions could lead to a violation of traders’ obligations arising from provisions on fair market practices. It should be noted that contemporary EU regulations increasingly place greater emphasis not only on the content of information provided to consumers, but also on the design of digital interfaces. Therefore, the subject of assessment is increasingly not the product or service itself, but rather the architecture of the purchasing process and the impact of the interface on the user’s freedom of decision-making.

Underage users are particularly important here. Both the European Commission and the European Parliament have repeatedly stated that children using digital services require a higher level of protection than the average consumer. This stems from their limited ability to assess economic risk and their greater susceptibility to persuasive techniques used by businesses. In practice, this means that solutions acceptable to adult users may be deemed disproportionate or unfair if they are primarily targeted at children and adolescents.

The importance of this issue has increased following the entry into force of Regulation (EU) 2022/2065 on the Digital Single Market (Digital Services Act – DSA). Although this act does not explicitly regulate lootbox mechanisms, it establishes a number of obligations regarding the design of digital services and the protection of users from practices that may negatively impact their decision-making autonomy. In particular, the DSA emphasizes the need to ensure a high level of protection for minors and limit the use of solutions that exploit the vulnerabilities of specific user groups. This trend indicates that future assessments of the legality of lootboxes will increasingly be conducted not only through the lens of gambling law but also taking into account consumer protection standards applicable in the digital environment.

In parallel, the European Commission is working on a legislative package known as Digital Fairness, which aims to adapt EU consumer protection regulations to the realities of the digital economy. Issues under review include manipulative design patterns, interface design that exploits user vulnerability, and mechanisms that exert excessive psychological pressure during purchasing decisions. Although the legislative work has not yet been completed, the direction of the proposed changes clearly indicates that future regulations may also cover monetization mechanisms used in video games.

The European Parliament also highlighted the need to enhance the protection of minors in its resolution of 26 November 2025 on the protection of children online. The document indicated that mechanisms such as loot boxes, in-game currencies, and other systems based on chance should be subject to special scrutiny from the perspective of protecting children from addictive and manipulative digital practices. While the resolution is non-binding, it provides an important political signal indicating the direction of future legislative action at the European Union level.

A separate but crucial element of the modern user protection system is the PEGI age rating. Starting in 2026, this system will adopt a more stringent approach to games featuring paid random mechanisms, recognizing them as solutions requiring a higher age rating. While the PEGI rating is not a source of law and does not in itself determine the legality of specific monetization models, it reflects a growing consensus on the need to provide greater protection for minors from mechanisms that utilize randomness and behavioral design techniques.

The above circumstances lead to the conclusion that the future of loot box regulation will likely be shaped primarily by regulations concerning consumer protection and digital services, rather than solely by traditional gambling law instruments. While the Gambling Act focuses on the qualification of specific business models, contemporary EU regulations increasingly assess the design of digital services and their impact on the autonomy of user decisions. Consequently, assessing the legality of loot boxes in the future will require comprehensive consideration of both gambling law and regulations concerning consumer protection, digital services, and children’s rights.

Approach of selected European countries to regulating loot boxes – a comparative analysis

The lack of a uniform definition of loot boxes in European Union law has led individual member states to develop different models for regulating this phenomenon. These differences concern not only the legal classification of random-based mechanisms but, above all, the assessment of the risks loot boxes pose to consumers, especially minors. As a result, the European Union currently boasts both countries adopting a very restrictive approach and jurisdictions that prefer to analyze individual business models rather than create separate statutory regulations.

Belgium has taken the most stringent stance for many years. The Belgian Gaming Commission has determined that certain lootbox mechanisms meet the criteria for gambling if the participant pays a fee, the outcome depends on chance, and the reward represents a specific economic value. Consequently, some game producers have decided to remove paid lootboxes from the Belgian market or significantly limit their functionality. This solution was primarily preventative in nature and aimed at limiting children and adolescents’ exposure to mechanisms that utilize randomness as a monetization tool .

The Dutch experience was different. For many years, the Dutch supervisory authority took a similar stance to the Belgian one, deeming certain lootbox models to be in violation of gambling regulations. The dispute concerned one of the most popular monetization models used by Electronic Arts became the subject of years of administrative and court proceedings. However, the final rulings demonstrated that the classification of loot boxes cannot be based solely on the presence of an element of randomness, but requires consideration of the overall economic structure of the game, the method of trading virtual goods, and the actual potential for financial gain for the user. The Dutch experience thus highlighted the difficulties associated with applying traditional definitions of gambling law to new business models operating in the digital economy.

At the opposite extreme is the approach adopted in Poland. To date, Polish lawmakers have not decided to create separate regulations regarding loot boxes or introduce a statutory definition. This means that the assessment of individual models is based on applicable gambling regulations and an analysis of the specific factual circumstances. This approach provides administrative bodies with significant interpretative flexibility, but also limits predictability for businesses operating in the digital market.

The practice of Polish authorities indicates that a functional assessment of the specific business model is crucial. In the case of platforms enabling the use of virtual items as a means of participating in games of chance, authorities may apply the instruments provided for in the Gambling Act, including entry into the Register of Domains Used to Offer Gambling Games Contrary to the Act. However, this does not automatically mean that all loot boxes used in computer games are illegal. The Polish model is therefore based on an analysis of the economic impact of a given solution, not on an abstract assessment of the randomness mechanism itself.

An analysis of the solutions adopted in individual countries leads to the conclusion that what is becoming increasingly important is not simply classifying loot boxes as gambling, but rather protecting consumers from the psychological mechanisms that lead to excessive spending or compulsive behavior. Therefore, many countries are beginning to perceive the loot box problem as an issue that goes beyond traditional gambling law and requires the use of instruments appropriate to consumer law and digital market regulation.

This approach also aligns with actions undertaken at the European Union level. The European Commission and the European Parliament increasingly point out that the fragmentation of national regulatory models can lead to uneven levels of user protection in the digital single market. The global nature of game producers’ operations means that businesses operate simultaneously in multiple markets, adapting their business models to the most stringent requirements in force in individual countries. In practice, this means that future legal solutions will likely aim for greater harmonization of consumer protection standards at the EU level.

However, this doesn’t mean a complete ban on loot boxes is necessary. A much more likely approach would be to introduce requirements regarding the transparency of random mechanisms, the publication of actual reward probabilities, more effective age verification of users, and restrictions on the use of solutions that exploit the vulnerability of children and adolescents to persuasive techniques. Such a regulatory model would preserve the possibility of using micropayments as a legal method of financing computer games while simultaneously strengthening consumer protection.

From the perspective of Polish law, the experiences of other European countries have significant interpretative significance. They demonstrate that mechanisms operating at the intersection of gambling and digital services cannot be assessed solely through the lens of classic legal constructs developed for traditional casinos or lotteries. The development of the digital economy requires a more comprehensive approach, taking into account both the economic significance of virtual goods and the impact of interface design on consumer decisions. Consequently, the future model for regulating loot boxes will likely be based on a combination of instruments from gambling law, consumer protection law, and regulations governing digital services, rather than the exclusive application of one of these legal regimes.

Conclusions de lege lata and postulates de lege ferenda

The analysis leads to the conclusion that current Polish law does not allow for a uniform legal classification of all lootbox mechanisms. Despite the growing number of voices calling for the recognition of lootboxes as a form of gambling, the current legal status does not provide a basis for automatically subjecting this entire product category to the provisions of the Gambling Act of 19 November 2009. Each assessment requires consideration of the actual operation of the specific business model, the nature of the prize, the potential for further turnover, and the economic impact of user participation in the random mechanism.

This doesn’t mean, however, that the current regulations remain entirely insufficient. With respect to some models operating on the market – particularly platforms that use virtual items as a means of participating in games of chance or enabling their exchange for cash – current regulations may be applicable. The practice of administrative bodies to date demonstrates that the Gambling Act remains an instrument that helps counteract the riskiest forms of activity, especially when virtual goods begin to function as an equivalent of money or property.

At the same time, it’s important to note that the vast majority of modern loot boxes don’t pose a classic gambling law problem. Their primary purpose isn’t to organize games of chance in the traditional sense, but to create a monetization model that leverages psychological mechanisms that increase user propensity to make subsequent purchases. For this reason, the current regulatory debate is increasingly shifting from gambling law toward consumer protection law and the regulation of digital services.

It seems that this is precisely the direction that Polish lawmakers should also adopt. Attempting to classify all loot boxes as gambling would oversimplify the extremely diverse digital market. A much more rational solution seems to be creating separate regulatory obligations for mechanisms that utilize randomness, without the need for automatic application of the entire gambling law regime.

First and foremost, it seems reasonable to introduce full transparency into random mechanisms. Before making a purchase, users should be able to familiarize themselves with the actual probability of winning individual prizes, how the randomization algorithm works, and whether this probability remains constant for all participants. Such solutions already exist in some computer games, but currently they are primarily driven by voluntary decisions by businesses or requirements in specific foreign markets.

The second direction of change should be to strengthen the protection of underage users. In light of current psychological knowledge and the positions of EU institutions, there is little doubt that children are particularly susceptible to the influence of mechanisms based on a variable reward system. Therefore, it seems reasonable to consider limiting the ability of people under a certain age to purchase paid loot boxes or introducing mandatory parental control mechanisms to effectively manage minors’ expenses.

Regardless of the above, legislators should consider introducing more detailed regulations regarding third-party platforms enabling the trading of virtual items. It is this market segment that currently raises the greatest concerns from the perspective of consumer protection and compliance with the Gambling Act. In particular, situations in which items obtained in-game become a means of participation in subsequent games of chance or can be directly converted into cash require analysis. In such cases, the line between a digital service and gambling activity becomes significantly blurred, justifying the application of more restrictive oversight measures.

Obligations regarding marketing activities should also be a crucial element of future regulations. In practice, loot boxes are primarily promoted through influencers and online creators, whose audiences often include minors. While advertising collaborations in and of themselves cannot be deemed unacceptable, situations in which marketing messages exclusively emphasize the possibility of winning exceptionally valuable prizes, disregarding the actual probability of winning them, or employing techniques that could create unreasonable expectations among recipients regarding potential benefits, require special consideration. In this regard, both consumer protection regulations and regulations regarding the integrity of advertising messages may apply.

The issues presented demonstrate that the issue of loot boxes is not limited to gambling law. In fact, it exemplifies a much broader phenomenon involving the use of advanced digital design techniques to influence users’ economic decisions. Technological advancements increasingly render traditional private and public law frameworks inadequate for assessing new business models based on user behavior analysis and interface design that maximizes consumer engagement and spending.

Consequently, the future of loot box regulation will likely depend less on further expansion of the definition of gambling than on the development of European consumer protection standards in the digital environment. Regulations on the transparency of digital services, countering manipulative design patterns, and ensuring a high level of protection for children using the internet are becoming increasingly important . These instruments may become the primary tool for mitigating the risks associated with loot box operations in the coming years.

It should therefore be assumed that effective regulation of this phenomenon requires a multifaceted approach, combining instruments of gambling law, consumer protection law, and digital market regulation. Only such a comprehensive solution will achieve the right balance between the freedom of game producers to conduct business and the need to ensure a high level of protection for users, particularly children and adolescents, who remain most vulnerable to the negative effects of random-based mechanisms.

Artykuł Lootboxes in Computer Games – Between Gambling Law and Consumer Protection. Regulatory Analysis Against the Background of Polish and European Union Law. pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

You see a video, a product catches your eye, and an “add to cart” button is already blinking in the corner of the screen. A few seconds later the order is placed, paid for, and on its way — all without leaving the app. That’s how TikTok Shop works: a closed-loop model in which the path from watching a piece of content to completing a purchase has been cut to the bare minimum. That very immediacy is its greatest strength and, at the same time, the source of its most serious concerns.

A platform that in 2017 drew around 72 million monthly users now attracts more than 1.5 billion — and between 11 and 15 million in Poland alone. TikTok has stopped being merely a place for entertainment and has turned into a powerful advertising and sales engine, combining influencer marketing, algorithmic personalization, and the emotional purchasing impulse. For businesses, it is a new and remarkably effective retail space. For consumers, it is an environment in which it grows ever harder to tell an authentic recommendation from an ad, or a fleeting enthusiasm from a considered decision.

That is precisely why TikTok Shop has landed at the center of lawmakers’ attention. While its model is not unlawful, the platform’s operation intersects with an entire web of regulation: from consumer law and the ban on “dark patterns,” through the EU’s DSA and DMA, data protection and safeguards for minors, all the way to advertising, media, and electronic communications law. This article shows where the convenience of one-tap shopping ends and the protection of the buyer’s free will begins.

What makes the TikTok Shop platform innovative?

Today, an effective marketing strategy is becoming an increasingly important priority for sellers. In Poland, monopolies in sales are relatively rare. Many competing companies operate in most industries. When purchasing products, consumers must choose from hundreds, or even thousands, of options offered by different brands. The scale of this phenomenon is evidenced by the fact that in the fourth quarter of 2025, over 2.9 million active businesses operated in Poland alone, the largest group of which were those associated with the retail sector. Meanwhile, buyers generally do not want to spend much time thoroughly analyzing goods available on the market. They are often guided by the opinions of other users, brand recognition, or media coverage. Therefore, in an information society based on the dynamic development of social media, tailoring advertising to current consumer needs and behaviors becomes crucial for running a business. Authentic and credible recommendations from trusted creators are becoming more important, and for many buyers, they are more persuasive than formulaic television commercials.

Considering the above arguments, many companies are making changes to their advertising strategies, for example, opting for influencer marketing. Online creators typically publish aesthetically and thematically consistent content that captures the interest of users with similar preferences and tastes. A business partnering with an influencer who shares similar values gains the opportunity to reach a large group of potential consumers, made up of the influencer’s followers. TikTok has become the dominant platform enabling the implementation of the marketing model described above. In 2017, the application had approximately 72 million monthly active users, and according to data from 2026, this number has increased to approximately 1.54 billion. In Europe alone, TikTok has already reached over 200 million users, and in Poland, the number ranged from 11 to 15 million. The average time spent on the platform is 70 minutes per day, which translates to approximately 35 hours per month. These statistics also indicate the continued growth of TikTok’s popularity, confirming the future of using social media for advertising and promotional purposes.

The development of influencer marketing significantly changed existing marketing practices, and its increasing prevalence led to the transformation of the TikTok app from a social media platform into an advertising system. The effective and profitable collaboration between media and advertising prompted the platform to take the next step in its development, combining these two sectors. Users were offered the opportunity to completely simplify the purchasing process. Previously, consumers only saw product advertisements, which attracted their attention and prompted them to search for sales offers. However, this pattern left them time to consider whether a purchase was truly necessary or necessary. It was also likely that, despite their interest in the product, they would eventually forget about the advertised product, and therefore their desire to purchase it.

The solution to the marketing strategy described above turned out to be a new feature presented by TikTok: TikTok Shop. The innovative nature of this tool is based on a closed-loop model, meaning the purchasing process takes place within a single app. Users first encounter content promoting a specific item. They then have the option to immediately purchase it by adding the advertised item to their shopping cart in the bottom corner of the app. TikTok acts as an intermediary for payment, shipping, and the entire order process. In this way, the app has evolved not only into a profitable advertising system but also an online store, becoming a marketplace platform that mediates payment, logistics, and order fulfillment.

The origins of TikTok Shop

Initially, the online shopping phenomenon developed through e-commerce. Its popularity contributed to the diversification of online sales into several business models: B2C, B2B, and C2C. The former involves a relationship between a business and an individual customer (examples include online stores such as Zalando, Zara, and IKEA). B2B refers to transactions between businesses, while C2C refers to sales between individuals, such as on platforms like Vinted, OLX, and Allegro.

These e-commerce models typically control the sales process independently. Their profits largely come from consumers who shop by searching for specific products they need. Entrepreneurs compete with each other through marketing activities aimed at convincing consumers of the quality of their products and building brand recognition.

In the next stage, the development of social media, and consequently influencer marketing, contributed to the emergence of a completely new type of buyer, one driven by impulse. Online creators present a specific lifestyle on their profiles in a significantly idealized form, which attracts the attention of their followers and becomes a role model. The desire to emulate the creator they follow can manifest itself both in their behavior and in the possessions they possess. The influencer thus becomes a person who inspires and encourages the purchase of a given product. Even if, from a rational perspective, the buyer doesn’t need the product, they often decide to purchase it under the influence of influencer marketing.

Additionally, a new branch of e-commerce has emerged, known as discovery commerce . This model relies on the discovery and purchase of new items while actively browsing social media. Highly advanced algorithms select content for users that aligns with their tastes or interests, in order to evoke certain emotions that then transform into a strong purchasing impulse. Social media platforms, recognizing this profitable sector, have contributed to the development of social commerce, including TikTok Shop. This solution capitalizes on users’ fleeting enthusiasm and allows them to complete their order without leaving the app. The entire process, from advertising content to payment and shipping, is handled by TikTok, which can limit the time available for rational purchase consideration.

What exactly does the purchasing process look like on TikTok Shop?

TikTok Shop is not a separate app, but a new feature added to the TikTok platform. There’s no need to create a new account or install a new app. This solution provides access to a wide group of potential consumers, as every existing TikTok user over the age of 18 can familiarize themselves with the new feature. This solution gives businesses multiple ways to reach consumers. The platform offers a separate tab, “Shop,” where users can search for specific products using filters and categories, or browse recommended items based on their activity on the platform.

Products offered by sellers using the TikTok Shop service can also be viewed on the “For You Page” tab. This is the subpage most frequently visited by users. This option is especially useful when a company decides to use influencer marketing. A creator posts a video promoting a selected product, and buyers are immediately presented with a purchase button at the bottom of the page. Consumers can also directly access the profiles of brands and creators to find the products they offer or promote.

The latest feature, TikTok Live, is gaining popularity. Before the live stream begins, the seller or influencer adds products available in the TikTok Shop. During the live stream, the host can showcase products, communicate with users, and answer their questions via chat. This can increase the credibility of the product and the seller, as well as encourage consumers to make a purchase, which they can do without interrupting the stream.

The very process of posting ads on TikTok Shop helps build consumer trust. Becoming a seller requires thorough verification, which the TikTok platform conducts to protect users from unreliable and fictitious businesses.

The first step to becoming a seller is to log in to your TikTok Seller Center account using your email address, phone number, or existing TikTok account. You’ll also need to fill out an application form with information that proves your seller credentials, such as your company name, address, and contact information.

After successful verification, the seller completes their store profile, adding a description, name, logo, seller details, addresses, customer service information, and tax information. It’s also necessary to configure payment and delivery methods, including the shipping address, available delivery methods, order processing time, and return policy. Connecting the store dashboard to a regular TikTok account is also crucial. This allows for tagging offered products in live videos, etc. The seller then has the option to publish their product, including the title, description, price, available models, and inventory. The platform also allows businesses to add listings by importing a product catalog from another sales platform.

After a consumer makes a purchase, the seller receives a sale notification in the TikTok Seller Center. The seller is then responsible for packaging and shipping the item to the user, which can be done manually or using external order processing systems.

Distance selling and consumer rights

The TikTok Shop platform offers the option of concluding a sale via a distance contract. This does not require the parties to be physically present at the same time, but rather requires at least one means of distance communication (Act of 30 May 2014 on consumer rights, Article 2). Therefore, when making a purchase through the TikTok Shop, consumer rights are governed by national and European Union law.

In Poland, the primary legal act regulating these activities is the Act of May 30, 2014, on Consumer Rights. Article 12 requires businesses to clearly inform consumers in distance contracts, including the method and deadline for contract execution, the total price including taxes, the right to withdraw from the contract, the complaint procedure, and the seller’s identifying information. The TikTok Shop platform is therefore obligated to provide the required information to the user before finalizing the order via the app. An important regulation is also included in Article 17 of the aforementioned Act and concerns the requirement to design the interface in a way that confirms the consumer’s awareness of the obligation to pay. In the case of platforms that allow order completion via a “button,” it must be clearly marked, e.g., “I buy with an obligation to pay” or “I buy and pay.” Otherwise, the contract is not concluded. The requirements described above are referred to as ” button ” solution ” and are intended to protect consumers from accidentally concluding paid contracts. Alternative obligations also arise from the Directive of the European Parliament and of the Council of 25 October 2011 on consumer rights.

The Consumer Rights Act also implements the EU Commodity Directive (2019/771), introducing uniform standards for the conformity of goods with the contract. A trader is liable for any lack of conformity of goods with the contract upon delivery and for two years from the date the discrepancy is discovered. The Act also governs basic consumer claims in the event of non-conformity, including repair or replacement of the goods, and if this is not possible, a price reduction or withdrawal from the contract.

Given that the sales strategy on the TikTok Shop platform relies on recommendation algorithms and influencer marketing, the Omnibus Directive (EU) 2019/2161 of November 27, 2019, plays a significant role in consumer empowerment. Its regulations introduce the obligation to provide information about the lowest price, disclose whether reviews were published by verified consumers, and indicate whether the seller is a business or an individual. The Omnibus Directive therefore increases consumer awareness and allows consumers to make more rational and manipulation-free purchasing decisions.

Digital Services Act Regulation

Due to their global nature, online platforms reach hundreds of millions of users. Content published through them can reach a very wide audience, thus influencing social, political, and economic relations. Massive social networking sites, therefore, go beyond simply providing entertainment or communication services and digital space, and are beginning to shape the reality around us.

The strong influence of individual platforms on current international relations has initiated more stringent oversight, including through the provisions of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on the single market for digital services and amending Directive 2000/31/EC (Digital Services Act – DSA). Based on this regulation, TikTok was recognized by the European Commission as a Very Large Online Platform (VLOP). This status is granted to portals with monthly active users exceeding 10% of the EU population. TikTok exceeded the threshold and was classified as a VLOP in 2023.

Platforms deemed globally influential are not solely responsible for removing illegal content. They are also required to counteract the negative consequences that may arise from their operation. Among the most important responsibilities of very large online platforms (VLOPs) is the identification and assessment of systemic risks and the potential implementation of proportionate mitigation measures. Impacts on fundamental rights, democratic processes, the protection of minors, public safety, and the dissemination of illegal content are particularly scrutinized. Once a specific risk is identified, measures are planned to counteract its escalation, such as modifying the user interface or changing certain advertising practices. In emergency situations, the European Commission has the authority to require VLOP providers to assess the platform’s impact on the development of the crisis, implement specific mitigation measures, and submit periodic reports on the effectiveness of these actions. Very large online platforms are also required to undergo an annual independent audit of compliance with the Digital Services Act (DSA) and regularly publish comprehensive reports on their activities. The aim of this action is to ensure transparency of the platform’s operation towards users and supervisory authorities.

The DSA also regulates advertising by introducing the requirement to maintain a public ad repository. This repository should include, among other things, the ad’s content, advertiser, funding entity, broadcast time, and the number of recipients. This solution is intended to ensure transparency in advertising messages and enable social and scientific analysis of platforms’ promotional activities. Restrictions have also been imposed on recommendation systems. This means that VLOPs are required to provide users with at least one way to display content that is not based on profiling, meaning it does not use user activity history or data. To monitor platforms’ compliance with the EU regulation, it is also possible to impose a requirement to share data on, for example, the performance of recommendation algorithms with the European Commission, national digital service coordinators, or verified researchers.

TikTok, however, is not subject only to the obligations of very large online platforms. It is subject to all regulations provided for in the Digital Services Act. According to Article 26, each advertisement must be clearly identified as promotional material and indicate the advertiser, the funding entity, and the mechanism by which it was tailored to the user. This restriction is particularly useful for the TikTok Shop platform, where sponsored content is commonly created in the manner of regular content published by creators. Limiting the phenomenon of so-called hidden advertising through the provisions described above aims to increase user awareness.

One of the DSA’s key goals is also the protection of minors. When designing their services, platforms are required to consider a high level of protection for minors and their privacy. It is prohibited to display advertisements based on the profiling of minors when the platform has knowledge of the user’s minor status. The goal is to limit the use of children’s data for marketing purposes and reduce the risk of addictive use of the app.

The European Commission has also become concerned about potential negative consumer behavior resulting from the increasing transformation of large social media platforms into e-commerce portals. Complex profiling algorithms, influencer marketing, and instant purchases can encourage users to make impulsive decisions or even become dependent on purchasing processes. Articles 25 and 27 of the Consumer Protection Act (DSA) mitigate this risk. Designing web interfaces that manipulate or complicate consumer decision-making – so-called dark patterns – is prohibited. Examples of unacceptable solutions include hiding options that are less favorable to the business, making it difficult to unsubscribe from services, or designing buttons that encourage a specific choice. Users should also be fully aware of how the recommendation system works; therefore, platforms are required to clearly present its main parameters and the possibility of changing the content suggestion method.

Tamper protection and dark patterns

A key premise of the TikTok Shop platform is the immediacy of purchases. While this solution is very beneficial for businesses and, typically, consumers, it can lead to abuse. Sales without leaving the app, a simplified order completion process, and algorithmic personalization of recommended products seem to provide greater convenience when shopping online. However, some activities can be classified as ” dark patterns”, manipulations used to mislead users and influence their decisions. Because the practices described above can lead to impulsive behavior and distort consumer will, they may be treated as unfair market practices and subject to criminal penalties.

The Act of 23 August 2007 on Counteracting Unfair Market Practices defines an unfair market practice as a sale that is contrary to good practice and significantly distorts or may distort the market behavior of the average consumer before, during or after the conclusion of a product agreement , in particular a misleading market practice and an aggressive market practice (Act of 23 August 2007 on Counteracting Unfair Market Practices, Article 4). The main grounds for considering a market practice misleading include the dissemination of false information or truthful information in a potentially misleading manner. Such misleading information typically concerns the existence of a product, its type or availability, price, the method of price calculation, or the existence of a special price advantage.

To encourage immediate purchases, sellers pressure buyers with messages suggesting limited availability or a limited-time promotion for a specific product. Examples of such messages include phrases like “100 people are viewing the product,” “offer ends in 2 hours,” or “only 4 items left.” This practice is not illegal and is one of the most common marketing mechanisms. Problems arise when the website or portal is programmed to continually extend promotions, the offer doesn’t actually expire after the specified date, or the counter restarts upon page refresh.

Misleading practices, such as suggesting the limited nature of a permanently available offer, and aggressive practices, such as exerting time pressure, may result in legal consequences. In addition to the aforementioned Act of 23 August 2007 on Combating Unfair Commercial Practices, this issue is also regulated by Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market. This directive distinguishes between misleading commercial practices and aggressive commercial practices. Together, they constitute unfair commercial practices, which include, in particular, actions that are contrary to the requirements of professional diligence and that significantly distort or are likely to significantly distort the economic behavior of the average consumer who reaches or is targeted by the practice, or the average member of a group of consumers if the commercial practice is targeted at a specific group of consumers (Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (“Unfair Commercial Practices Directive”), Chapter 2, Article 5, paragraph 2).

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 (Omnibus Directive) is also intended to combat various manifestations of the “dark patterns” phenomenon. It requires sellers to disclose the lowest price for a product within the last 30 days. This is intended to prevent the practice of artificially inflating prices and then announcing sales. The practice of fake reviews has also been curbed by introducing an obligation to disclose whether and how reviews posted on sales websites are verified. The Omnibus Directive also introduced the requirement to indicate on marketplace platforms whether the seller is a private individual or a professional entrepreneur, so that consumers are aware of who they are buying from.

The European Union has also introduced restrictions related to the design of digital services, contained in Regulation 2022/2065 on the Digital Single Market (DSA). As a result, online platform providers cannot design, organize, or operate their online interfaces in a way that misleads, manipulates, or otherwise interferes with or limits the ability of service users to make free and informed decisions. The regulation therefore directly addresses the fight against “dark patterns,” i.e., website design practices that deliberately use deceptive techniques, such as pre-selected consents or difficult unsubscribes.

The President of the Office of Competition and Consumer Protection (UOKiK) has broad authority to protect consumers from the unfair commercial practices mentioned above. Under the Act of 16 February 2007 on Competition and Consumer Protection, one of his powers is to protect the collective interests of consumers, including through provisions counteracting unfair market practices. If necessary, the UOKiK President may initiate proceedings against a business, ordering it to cease the unfair practice, or requiring the seller to remedy the effects of the violation. Should a business fail to comply with the guidelines, he may impose a fine of up to 10% of the business’s turnover in the previous year.

The number of legal acts, including EU documents, regulating unfair commercial practices reflects the considerable interest in this issue among both legislators and consumer protection authorities. TikTok Shop, as a social commerce model, is not illegal. It utilizes mechanisms combining influencer marketing, personalization, and emotional impact on the recipient, but the design of the user interface is crucial for this platform. The popularity of mass sales portals has contributed to the increasing use of “dark patterns” by businesses over the past few years. For this reason, the European Union and the Office of Competition and Consumer Protection (UOKiK) are increasingly rigorously monitoring sales tactics and issuing new legal acts to protect consumers and their free will when making purchases.

Influencer Marketing and Advertising Law

The effectiveness of influencer marketing stems from combining advertising with the ability to make an immediate purchase. Affiliate links, product tags, or direct purchase buttons, such as those on the TikTok Shop platform, are displayed beneath posts, videos, or other promotional materials. This purchasing model has proven effective by significantly simplifying the ordering process, thus reducing the time consumers spend considering the rationale behind the transaction.

The popularity of the marketing strategy described above stems from its perception by users, who perceive it as authentic and credible. Influencers present promoted products in a natural way, integrating them into their daily routine. However, if the material does not solely reflect the creator’s personal opinion but is created after receiving a benefit in return, it is considered commercial communication. This means it is subject to legal regulations on advertising and consumer protection. In Poland, influencers should clearly label advertising content in accordance with the Recommendations of the President of the Office of Competition and Consumer Protection. These regulations are intended to prevent misleading users.

Only content regarding a product that the influencer purchased independently and for which they did not receive remuneration or other benefits can be marked as a private opinion. Such material contains genuine feelings and opinions and therefore does not constitute advertising under the law and is not subject to advertising law. This is the most credible and reliable form of review for potential consumers, as it was created by a person not under any obligation to the manufacturer.

A manufacturer may enter into an agreement with an influencer to promote a product in exchange for a free product, financial benefit, or other form of remuneration. This creates legally regulated advertising. It may take the form of a post, report, or live broadcast in which the creator demonstrates how they use the product and its positive properties. Due to the natural presentation of the product as an everyday element, the recipient may have difficulty distinguishing a genuine recommendation from commercial content. The Act of August 23, 2007, on Counteracting Unfair Market Practices, classifies the act of concealing a promotional message as a misleading omission. Failure to clearly indicate the commercial nature of the material may hinder consumers’ proper assessment of the message and directly influence their purchasing decisions.

Another common advertising strategy is to feature a product integrated into published content without directly promoting it, for example, by placing it in the background of the material. This phenomenon is called product placement. Activities covered by advertising and consumer protection law also include, among others, affiliate and partner links, ambassador programs, and partner competitions. In Poland, these practices must contain clear, understandable to the average recipient, and visible advertising labels from the very beginning, such as “advertisement,” “paid collaboration,” or “sponsored content.” The Office of Competition and Consumer Protection (UOKiK) also recommends the use of two-level labeling, meaning that, in addition to the information contained in the content, the platform’s functionality must also be used to announce the paid collaboration. Detailed guidelines can be found in the Recommendations of the President of the UOKiK regarding the labeling of advertising content by influencers. Material is considered advertising content not only when the influencer receives monetary compensation in exchange for its creation. The same obligation applies when promoting your own business, receiving a free product or service, or obtaining a sales commission via an affiliate link or discount code (Recommendations of the President of the Office of Competition and Consumer Protection regarding the marking of advertising content by influencers).

In the event of non-compliance with the Recommendations of the President of the Office of Competition and Consumer Protection regarding the labeling of advertising content by influencers, pursuant to the Act of 16 February 2007 on Competition and Consumer Protection, the Office of Competition and Consumer Protection (UOKiK) conducts proceedings against entrepreneurs using practices that violate the collective interests of consumers. Actions may be taken against advertisers, influencers, and marketing agencies. Therefore, responsibility for incorrect labeling of advertising content rests not only with the creator publishing the material but also with all entities participating in organizing the promotional campaign. One of the sanctions that the President of the UOKiK has the right to impose is a financial penalty. Incorrectly labeled promotional material can also be considered surreptitious advertising. Due to the dynamic development of influencer marketing, the proper creation of marketing content is currently widely subject to UOKiK scrutiny. Therefore, it is worth clearly and understandably labeling sponsored publications, among other things, to avoid significant financial penalties.

Personal data protection

TikTok Shop, as a hybrid social network and e-commerce platform, processes a significant amount of data related to both user activity and purchasing processes. The app’s operation is based on audience profiling and matching the most relevant content. Therefore, the platform’s operations are subject to the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR).

In addition to user data such as name, surname, contact details, shipping addresses, and payment information, media platforms also collect information that allows for behavioral analysis. Time spent browsing specific products, interactions with ads, and the history of items added to carts or wish lists allow the TikTok Shop platform to create a personalized recommendation system based on past activity. This phenomenon creates so-called behavioral advertising, a marketing strategy based on user profiling using advanced algorithms to predict future purchasing decisions. The concept of profiling refers to the automated processing of personal data, particularly for the purpose of predicting a user’s economic situation, personal preferences, interests, health, and location.

According to the GDPR, profiling is permissible, but it also comes with a number of obligations. Platforms are obligated to transparently inform users about, among other things, the purposes of profiling, the legal basis for data processing, the consequences of the actions taken, and their rights, including the right to object to profiling. Data of minors is particularly protected. Due to the growing popularity of the TikTok app among young users, it was necessary to subject it to special regulations in this regard. In the area of information society services, the processing of data of children over 16 years of age is lawful. An exception is made for situations in which a person with parental authority or guardianship provides prior consent. However, EU member states may introduce a lower age limit in their laws, but it must be at least 13 years old, as is the case in Poland, for example. To ensure that platforms enforce their obligations related to the protection of minors, they should use appropriate age verification mechanisms. In practice, however, this solution requires further improvement due to the common practice of users providing false data during registration.

The President of the Office of Competition and Consumer Protection (UOKiK) plays a crucial role in protecting users, especially the collective interests of consumers. He is authorized to take action against entrepreneurs who engage in unfair market practices, design manipulative interfaces, and so on. Personal data protection, however, falls primarily within the remit of the Office for Personal Data Protection (UODO), which oversees compliance with the GDPR and the secure processing of information by companies and institutions. Due to its global influence, TikTok has attracted increasing attention from EU authorities in recent years and is becoming the subject of more frequent inspections. Due to the platform’s European headquarters being located in Ireland, the relevant supervisory authority is the Irish Data Protection Commission (DPC). For example, in 2025, this institution imposed a fine of €530 million on ByteDance, the app’s owner. The fine was imposed on the transfer of user data from the European Economic Area to China in violation of the GDPR and the failure to demonstrate data protection at the level guaranteed in the EU.

The GDPR is supplemented by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), which regulates, in addition to the processing of personal data, the confidentiality of electronic communications, also known as ePrivacy. Due to the scope of its regulations, the provisions of this directive have particular relevance to the TikTok Shop application. The platform uses numerous tracking technologies, such as cookies and mobile device advertising identifiers, to monitor user activity. Information may be stored on a user’s device or accessed only after obtaining prior consent. Exceptions are made only for technologies strictly necessary to provide the service requested by the user, such as remembering a shopping cart. An additional ePrivacy regulation was also envisaged, the purpose of which was to replace the current directive and harmonize the personal data protection rules applicable in all EU Member States. The changes were to include, among other things, simplifying the rules regarding cookies. However, the project encountered legislative difficulties and was not adopted by decision of the European Commission.

Abuse of Market Power and the Digital Markets Plan

The dynamic expansion of the largest digital platforms’ influence has led to the need to adapt competition law to the new situation, particularly in the digital market. To this end, the European Union adopted Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act – DMA). The Act introduces the concept of a gatekeeper. This term refers to an entrepreneur with an influential position in the internal market, through which business users reach end users. A gatekeeper provides a core platform service and maintains an established market position.

The dominant position of a gatekeeper is also associated with a number of obligations. Among other things, the practice of self-preferencing, which involves favoring one’s own products or services over the offers of other businesses using the platform, is prohibited. In the case of TikTok Shop, this could involve using recommendation algorithms to increase the visibility of products promoted by individual sellers, without applying objective and fair advertising criteria. This type of favoritism and limiting the reach of individual entities could lead to a distortion of fair competition between businesses using TikTok Shop for sales purposes.

By decision of the European Commission, BytaDance Ltd. was granted gatekeeper status solely for the operation of the TikTok application as a social media platform. The DMA regulations governing the gatekeeper position do not apply directly to TikTok Shop, but they may impact the rules for recommending products and using entrepreneurs’ data.

Media law and audiovisual regulations

Audiovisual materials are the primary tool for promoting and selling products on the TikTok Shop marketplace. Therefore, the app’s operations are also subject to scrutiny for compliance with media law and regulations governing audiovisual media services. The dominant role in this regard is played by Directive 2010/13/U of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation, or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive – AVMSD) and the Broadcasting Act of 29 December 1992, which implements it into Polish law. As a result of the amendment to the Act of 11 August 2021, the regulations have been extended to video-sharing platforms, including the TikTok app.

Video-sharing platforms are primarily obligated to implement appropriate measures to protect minors from harmful content that could negatively impact their moral, mental, or physical development. These provisions have been implemented into Polish law through Article 47e of the Broadcasting Act, which mandates, among other things, the marking of potentially inappropriate content with special graphics for young viewers. These regulations are particularly important for the TikTok Shop platform due to the constantly growing number of underage users. Posting content that spreads hatred and discrimination is also prohibited.

TikTok Shop, a hybrid social media platform and e-commerce platform, is often used to publish so-called audiovisual commercial communications—images used to directly or indirectly promote goods, services, or individuals (Directive 2010/13/U of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, Article 1). Article 9 of the AVMSD requires member states to ensure that such communications are easily recognizable, thus prohibiting hidden audiovisual commercial communications. The use of subliminal techniques or the inclusion of discriminatory content would also be illegal. The National Broadcasting Council (KRRiT) is responsible for ensuring compliance with audiovisual law. Its remit includes, among other things, overseeing the activities of video-sharing platform providers.

The sales method used by TikTok Shop may seem analogous to teleshopping, offerings directly to consumers to deliver goods or services in exchange for payment. This modern form of interactive audiovisual commerce (live shopping) bears numerous similarities to traditional teleshopping. The mechanisms of both aforementioned sales methods involve presenting the product, its specific features, available options, and generally encouraging the recipient to purchase. However, teleshopping is targeted at a general, anonymous audience who may only be interested in the recommended product. Meanwhile, TikTok Shop relies on advanced algorithms that target promotional content to users who, based on their previous activity, have shown interest in similar content.

Platform liability under e-commerce regulations

The original act regulating the legal liability of online platforms in the European Union was Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). Its foundation was the so-called safe harbor principle, i.e., the principle of limited liability of online intermediaries. According to this principle, hosting service providers and online platforms were not liable for content or goods published by users, provided they had no actual knowledge of the illegal nature of the content or goods or services or, upon obtaining such knowledge, promptly removed any infringements. Furthermore, the directive did not impose a general obligation on platforms to monitor content published by users.

However, the ongoing development of digital platforms has made it necessary to amend the current liability model. Regulation (EU) 2022/2065 – Digital Services Act (DSA) – came into effect on February 17, 2024. This regulation does not eliminate the principle of limited liability but significantly expands monitoring obligations, especially for very large online platforms (VLOPs). One of the key obligations introduced under the new regulations is the Know Your Business Customer (KYBC) principle. This regulation aims to increase the safety of consumers shopping online by limiting sales conducted by dishonest or anonymous traders. Before enabling sales through its platform, an online platform must collect and verify basic data identifying the seller. The required information includes, among others, the trader’s name, registered office address, contact details, registration number in the relevant register of traders, and the trader’s payment account details. In the event of refusal to provide the specified data or providing it falsely, the platform should prevent the trader from conducting sales until the situation is resolved.

A problematic issue related to the TikTok Shop app is defining the platform’s responsibility for transactions conducted by sellers using it. Although TikTok Shop formally acts as an online intermediary, it can be argued that its operating mechanism goes beyond passive hosting. A recommendation system using algorithms, promoting offers, and providing marketing and analytical tools to sellers are the mechanisms TikTok Shop uses to shape consumer behavior and purchasing decisions. The platform’s influence on the visibility of offers and the order fulfillment process may support assigning it broader responsibilities in overseeing the online sales process.

Regulations on electronic communications, including the European Electronic Communications Code and the Polish Electronic Communications Law

The TikTok Shop platform does not constitute an electronic communications service under European Union law, but its operations provide for various forms of electronic communication. TikTok Shop’s use of push notifications, in-app messages, and marketing communications requires the platform to comply with regulations governing electronic marketing and the protection of user privacy in electronic communications. The primary legal acts regulating these aspects are Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (EECC) and the Act of 12 July 2024 – Electronic Communications Law.

The primary function of TikTok Shop is to enable entities to sell goods through the social media platform. Article 2 of the European Electronic Communications Code defines an electronic communications service as the transmission of signal transmissions or the provision of interpersonal communications services. The mere ability to exchange messages between users or with sellers does not automatically qualify the TikTok Shop platform as a provider of electronic communications services, as this is not its core competency and does not constitute its core business. However, because electronic communications are primarily used for marketing purposes, it is obligated to comply with regulations governing direct marketing and the protection of user privacy.

Push notifications, messages sent directly to users’ mobile devices, are an increasingly popular marketing solution. TikTok Shop uses them to provide information about order status, discounts, time-limited campaigns, or the launch of live shopping. Transactional notifications regarding order fulfillment, shipping, or payment status are typically part of the contract and do not require marketing consent. However, notifications encouraging potential consumers to make a purchase are classified as direct marketing and, in accordance with electronic communications law, require prior user consent.

The practice of using automated calling systems and electronic means of communication for advertising purposes without the user’s prior consent is also prohibited. Users should be clearly informed about the purpose of receiving marketing communications, the data controller, and the possibility of withdrawing consent, which should not result in any negative consequences. With respect to the TikTok Shop platform, the above position means that it is unlawful to send promotional content to users solely based on the fact that they have an account on the app.

TikTok Shop is the clearest example of how thin the line between entertainment, advertising, and commerce has become – a one-tap purchase woven into a stream of content is now as effortless as liking a video. Yet that convenience comes at a price: the closed-loop model and algorithmic personalization shrink the time left for rational reflection, while responsibility for protecting the consumer shifts increasingly away from the buyer and onto the platform and the legislator. EU and national regulations – from consumer law, through the DSA and DMA, data protection and safeguards for minors, all the way to media and electronic communications law – form a web meant to counterbalance the platform’s power and restore the buyer’s awareness of their own choices. TikTok Shop thus remains a dual phenomenon: on one hand a groundbreaking innovation in digital commerce, on the other a test of whether the law can keep pace with a technology that sells faster than we can think.

Artykuł A Store in Your Pocket, the Law in the Background: TikTok Shop Under the Regulators’ Lens pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.

We are delighted to share an important milestone in the continued development of KG Legal’s Data, AI & Cybersecurity Desk.

It has been a great honour to serve as the exclusive expert contributors for Poland to the OneTrust DataGuidance Privacy Overview – Poland, one of the world’s leading professional legal compliance resources relied upon by in-house counsel, privacy professionals, compliance officers, multinational organisations and technology companies operating across multiple jurisdictions.

Preparing this contribution was a long-term project that required several months of intensive legal analysis, research and editorial work. Our objective was not simply to describe the application of the GDPR in Poland. Instead, we sought to create a practical and comprehensive guide reflecting the significant transformation of the Polish regulatory landscape that has taken place in recent years as a result of new European legislation and its implementation into Polish law.

The publication therefore extends far beyond a traditional overview of Polish data protection law. It examines the interaction between privacy, digital regulation, cybersecurity and artificial intelligence, providing readers with practical guidance on the most important legal developments affecting organisations operating in Poland.

Our contribution discusses, among other things:

• the practical application of the GDPR within the Polish legal system;
• the powers and regulatory practice of the Polish supervisory authority for personal data protection;
• employee monitoring and workplace privacy;
• cookies, consent mechanisms and online tracking technologies;
• electronic communications and direct marketing requirements;
• international data transfers;
• personal data breaches and notification obligations;
• practical compliance with Polish privacy legislation;
• cybersecurity-related regulatory developments;
• the growing interaction between data protection and artificial intelligence governance.

A particularly important aspect of this work was addressing the rapidly evolving legislative environment. During the last few years, Poland has experienced substantial regulatory changes resulting from the implementation of numerous European legal instruments and the entry into force of directly applicable EU regulations that significantly affect organisations processing personal data.

Accordingly, the publication takes into account the practical implications of the evolving European digital regulatory framework, including the interaction between the GDPR and newer legal instruments governing digital services, artificial intelligence, cybersecurity and data governance. The analysis also reflects the impact of the AI regulatory framework, developments concerning data governance and electronic communications, as well as the increasingly interconnected compliance obligations facing businesses operating in today’s digital economy.

Rather than presenting legislation in isolation, the publication adopts a practical, compliance-oriented perspective. It combines:

• the GDPR and Polish implementing legislation;
• guidance issued by the European Data Protection Board (EDPB);
• the jurisprudence of the Court of Justice of the European Union;
• decisions and regulatory guidance published by the Polish Personal Data Protection Office (UODO);
• recent Polish legislative developments and market practice.

Our ambition was to create a resource that would assist both international and domestic organisations in navigating one of the fastest-changing areas of European regulation, where privacy law increasingly intersects with cybersecurity, AI governance, digital platforms, online communications and emerging technologies.

The contribution was prepared by Małgorzata Kiełtyka and Jakub Gładkowski, whose combined experience covers complex cross-border advisory work in data protection, artificial intelligence, life sciences, healthcare, technology law, cybersecurity, intellectual property and regulatory compliance.

https://www.dataguidance.com/experts-directory/Jakub_G%C5%82adkowski

https://www.dataguidance.com/experts-directory/Malgorzata_Kieltyka

For many years, Małgorzata Kiełtyka has advised international companies on GDPR compliance, healthcare regulation, AI governance, technology transactions and cross-border regulatory matters. Her practice combines strategic legal advice with practical implementation of compliance frameworks for multinational businesses operating in highly regulated sectors.

Jakub Gładkowski focuses on data protection, digital regulation, cybersecurity, intellectual property, IT law and emerging technologies. His practice includes advising innovative businesses on regulatory compliance, digital transformation projects and the implementation of European technology legislation affecting both public and private sector organisations.

Being entrusted with preparing Poland’s national contribution to OneTrust DataGuidance represents an important recognition of our team’s expertise and international standing. We are particularly proud that this publication reflects not only our experience in privacy law, but also our broader interdisciplinary approach, integrating data protection with AI regulation, cybersecurity, digital compliance and technology law.

We sincerely thank the editorial team at OneTrust DataGuidance for their confidence in our expertise and for the opportunity to contribute to a publication that supports legal and compliance professionals around the world.

For KG Legal, this publication marks another significant milestone in the continued growth of our Data, AI & Cybersecurity Desk and reinforces our commitment to delivering practical, business-oriented legal advice at the intersection of privacy, technology and innovation.

Artykuł A Major Milestone for KG Legal’s Data, AI & Cybersecurity Practice: Exclusive Poland Contribution to OneTrust DataGuidance pochodzi z serwisu KIELTYKA GLADKOWSKI LEGAL | CROSS BORDER POLISH LAW FIRM RANKED IN THE LEGAL 500 EMEA SINCE 2019.