Personalised prices and dynamic pricing in online shops: when notice of automated decision-making is required and which records businesses should preserve.
, Mag. Bernhard Brandauer, Rechtsanwalt
Personalised prices in online retail trigger a specific information duty. Under Article 6(1)(ea) of Directive 2011/83/EU and its Austrian implementation in the Distance and Outward Transactions Act, consumers must, where applicable, be told that the price was personalised on the basis of automated decision-making.
The rule does not generally prohibit personalised prices. It requires the pricing process to be classified clearly and concerns pre-contractual information in consumer contracts. The first question is therefore whether an individual price is determined through automated decision-making or profiling, or whether the same price simply changes dynamically for all customers.
This article distinguishes personalised prices from general dynamic pricing, individual discounts and personalised recommendations. It focuses on when the notice is relevant, how to build the record and what to do when pricing is already being delivered. Data protection issues may arise in addition and do not replace consumer price information.
This short path separates a planned personalised price, a live delivery and an unclear dynamic pricing model. You can then send the relevant records to the firm.
Pricing logic, audience, delivery and records determine the first review.
This path does not decide whether a breach occurred. It organises the pricing logic, audience and records for an initial review.
Organise the pricing rules, data categories, audiences, notices, approvals and technical documentation. Check the pre-contractual information before any delivery.
Preserve screenshots, price and log data, account or session conditions, advertising, notice text, delivery rules and the challenge. Keep the version actually shown to users unchanged.
Record whether the price changed for everyone because of time, demand or stock, or whether individual data, profiles or segments determined the price level. Have the actual implementation reviewed legally and technically.
Article 6(1) of Directive 2011/83/EU requires clear and comprehensible pre-contractual information for distance contracts. Point (ea) adds, where applicable, a notice that the price has been personalised on the basis of automated decision-making. Austria implements this requirement in the Distance and Outward Transactions Act.
The duty is linked to how the price is formed. It is not a general explanation of how an algorithm was programmed and it is not a blanket justification for every price change. The consumer should be able to recognise that the displayed price was personalised through automated decision-making.
Recital 45 of Directive (EU) 2019/2161 explains the practical background: businesses may personalise prices for specific consumers or groups using automated decision-making or profiling. The result is an information duty, not a general ban on this pricing model.
Dynamic pricing initially means a price change based on variable factors such as demand, stock, time or market price. If the price changes for all users under the same rule, that alone is not personalisation based on consumer characteristics. The actual technical and visible implementation is decisive.
A price is more likely to be personalised when the system treats individual consumers or groups differently and uses account data, past behaviour, profile characteristics or segment allocation. The system label is secondary. What matters is the input, rule, result and which price was shown to whom.
Individual vouchers and loyalty discounts should be described separately. A discount available to a customer under transparent participation conditions is not automatically a personalised base price. Hidden price differences and an individual benefit presented as a general price require a closer review of the overall impression.
The information duty is pre-contractual. The notice therefore belongs in the journey in which the consumer sees the price as a basis for the purchasing decision. A notice hidden until after the order will generally fail to serve the purpose of pre-contractual information.
The wording should distinguish a generally variable price from a personalised price. A short statement such as “This price was personalised on the basis of automated decision-making” can state the statutory core. Whether further information is needed depends on the pricing logic, presentation and other applicable legal bases.
The notice, price, product, account view and mobile presentation belong in one review file. Record whether the notice was visible before contract conclusion, whether it was only in a footnote or separate layer, and whether the displayed price was actually covered by the described process.
A general reference to AI or an algorithm is not enough for the legal review. The business should document which data categories enter the pricing decision, which rule or model processes them and which price variants result. The actual technical process controls the assessment.
Profiling under the General Data Protection Regulation and consumer information about a personalised price overlap, but they are not identical. The GDPR may create additional duties concerning legal basis, transparency or solely automated decisions. Meeting a data protection duty does not automatically provide the specific price-formation notice.
Record the version, approval, test cases and changes to the pricing logic. If a platform or service provider calculates the price, also clarify who controls delivery and what information is actually shown to the consumer.
A reliable record links the technical pricing rule to the concrete user view. Preserve anonymised test cases, timestamps, price responses, segment allocation, rule version, product page, basket and checkout. The article on price comparison advertising, reference dates and basket evidence explains why price, time and basket should be preserved together.
For a challenge, keep the correspondence, time of receipt, challenged price view and internal documentation together. Assess separately whether the notice was missing, whether the price-formation statement was unclear or whether an additional misleading practice under the UWG may be relevant. The advertising claims checklist supports an orderly record of wording and evidence.
Do not silently change the pricing logic after a challenge without preserving the earlier version. A correction may be appropriate, but document its version, timing, responsibility and affected channels. If a dispute is possible, a complete file is more important than a retrospectively created excerpt.
Before deployment, prepare a pricing profile covering products, audience, data categories, decision steps, price variants, notice, placement and approval owner. This makes it possible to compare the technical rule with the visible purchasing journey.
For live systems, use repeatable test profiles. Compare a general view, a signed-in view and views under different segment rules. Record whether the difference really results from automated individual allocation or from a market adjustment applied to everyone.
The reviews under the Austrian consumer, unfair competition and data protection rules should have clear responsibilities while using the same factual record. If there is a concrete concern, preserve price views and logs first. The next decision can then address the notice, the pricing logic or a further legal response.
No. Article 6(1)(ea) of Directive 2011/83/EU and the Austrian implementation generally provide for information where the price was personalised on the basis of automated decision-making. Whether further consumer, unfair competition or data protection limits apply depends on the implementation.
No. A general price change caused by demand, stock or time is not by itself a personalised price. The key question is whether individual consumers or groups are priced differently through automated decision-making or profiling.
The notice belongs in the pre-contractual information journey and must be clear and findable. Its timing, presentation and connection with the displayed price require a case-specific review. A notice shown only after contract conclusion will generally miss the purpose.
A general reference does not reliably state the statutory core. The consumer should learn that the offered price was personalised on the basis of automated decision-making. Additional data protection information may be required as well.
Useful records include pricing rules, rule or model versions, data categories, segment definitions, test cases, price responses, timestamps, user views, notice text, approvals and change logs. For a challenge, also preserve the correspondence and the version actually delivered.
Document price, reference date, comparison basis and visible version together.
Organise the claim, audience and supporting records before publication.
Review checkout design and express consent separately.
Keep the reduction, reference price and sales channel traceable.
Classify evidence, risk of repetition and the possible protective aim.
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