Digital marketing and e-commerce: the legal pitfalls to avoid in 2025

The world of digital marketing is evolving at a breakneck pace, offering e-commerce players unprecedented opportunities.

However, behind the promises of customer acquisition and growth lie many often-overlooked legal risks. With national, European and international regulations overlapping one another, the terrain becomes a veritable minefield for companies that neglect the legal aspect of their digital strategies.

In 2025, legal vigilance is no longer an option but an absolute necessity to ensure the long-term viability of your online business.

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Email marketing: between commercial opportunity and legal constraints

Email marketing remains one of the highest-performing channels in terms of return on investment, with an average ROI of €42 for every euro invested according to the latest studies. Yet this practice comes with strict regulatory constraints which, if ignored, can lead to significant penalties.

The collection of addresses must strictly comply with the principle of explicit and specific consent. Pre-ticked boxes are now prohibited, and each purpose of use must be the subject of separate acceptance. Furthermore, every commercial message must contain a functional and easy-to-use unsubscribe mechanism. The mere absence of this feature can expose the company to a fine of up to 4% of total annual worldwide turnover.

The question of proof of consent is also becoming central. In the event of an inspection or a complaint, the e-merchant must be able to demonstrate when and how each contact consented to receiving its communications. This obligation entails setting up reliable archiving systems and timestamping of consents, a technical dimension that is often neglected but legally crucial.

Social media and influencer marketing: a legal framework in flux

Influencer strategies on social networks are becoming more professional, but the legal framework surrounding them is tightening at the same time. The principle of advertising transparency now applies with increased rigour. Any commercial collaboration between a brand and a content creator must be explicitly disclosed through labels such as #advertising or #partnership, and this from the very first exchange of value, even non-monetary.

Responsibility for this transparency lies jointly with the influencer and the brand. This joint legal liability means that an e-merchant cannot exonerate itself by invoking a partner's breach. On the contrary, it must put in place rigorous contractual procedures including compliance clauses and monitoring mechanisms.

The commercial claims circulated via these channels are also subject to heightened scrutiny. Promising unproven results, suggesting unapproved therapeutic effects or guaranteeing unrealistic performance exposes the advertiser to proceedings for misleading commercial practices. The line between acceptable marketing argument and abusive promise is narrowing considerably, requiring a careful review of each promotional piece of content before it is published.

Faced with this growing complexity, the involvement of an e-commerce lawyer becomes essential to draw up influencer marketing charters aligned with the latest legal requirements while preserving the commercial effectiveness of campaigns.

Prize competitions and promotions: the rules of the game are getting tougher

Promotional operations constitute a powerful acquisition lever but a legally sensitive one. The regulation of prize competitions has been considerably strengthened, imposing strict requirements regarding transparency of mechanics, equal opportunity and protection of participants' data.

Each competition must now be accompanied by comprehensive rules covering all the terms of participation, the criteria for selecting winners and the conditions for awarding prizes. This document, far from being a mere formality, constitutes a genuine contract of adhesion in which the slightest ambiguity can be a source of litigation. The clauses relating to the use of content generated by participants (photos, videos, testimonials) deserve particular attention in order to avoid any subsequent dispute regarding copyright or image rights.

The notion of prohibited lottery continues to pose difficulties of interpretation. To avoid this legally risky classification, the game must necessarily include an element of skill or reflection, or be entirely free with no disguised obligation to purchase. The balance is sometimes subtle between an attractive promotional mechanic and an operation that complies with legal requirements.

Limited-time offers or those presented as exceptional are also subject to increased scrutiny by the authorities. A promotion displayed as temporary but regularly renewed, or a struck-through price that does not correspond to a price actually charged previously, may be classified as unfair commercial practices, resulting in deterrent penalties and considerable reputational harm.

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Artificial intelligence in the service of marketing: new tools, new risks

Artificial intelligence is revolutionising marketing practices by enabling unprecedented personalisation of messages and customer journeys. However, this innovation comes with an emerging legal framework whose contours, still blurred on certain aspects, are nonetheless binding.

The use of predictive algorithms to steer product recommendations or personalise prices raises significant compliance questions. The principle of algorithmic transparency is gradually taking hold, requiring that customers be informed when significant decisions concerning them are made by automated systems. This requirement entails an adaptation of legal notices and privacy policies that must be meticulously orchestrated.

The generation of marketing content by AI also raises unprecedented challenges in terms of intellectual property and editorial responsibility. The e-merchant deploying these technologies remains legally responsible for the content published, even if it is produced automatically. Particular vigilance is therefore required in supervising these tools and verifying the content generated.

Conversational chatbots and virtual assistants, now integrated into many purchasing journeys, must comply with specific obligations regarding pre-contractual information and the collection of consent. Their legal design requires particular expertise to ensure that they do not mislead the consumer and that they comply with all the information obligations prior to the conclusion of an online contract.

Dark patterns: obscure practices under close scrutiny

Dark patterns refer to those interfaces designed to subtly steer user behaviour, sometimes against their interest or their genuine intention. These practices, long tolerated as a matter of commercial optimisation, are now the subject of targeted legal enforcement.

Obstruction techniques that deliberately complicate certain actions (such as unsubscribing from a service or refusing non-essential cookies) are particularly targeted. Likewise, false senses of urgency created artificially ("Only 2 items left", "15 people are viewing this product") must be based on real and verifiable data, on pain of being classified as misleading commercial practices.

Hidden costs revealed late in the purchasing journey constitute another practice that is now strictly regulated. All charges (delivery, insurance, options) must be clearly indicated from the moment the product is presented, or failing that, the existence of these additional charges must be explicitly mentioned before any purchase decision.

Interface compliance thus becomes a strategic issue that goes well beyond the scope of user experience to take root in an overall legal compliance approach. A regular audit of customer journeys from a legal perspective makes it possible to identify and correct elements likely to be classified as dark patterns before they become the subject of reports or proceedings.

Targeted advertising and cookies: navigating a post-third-party-cookie environment

The landscape of targeted advertising is undergoing a radical transformation with the gradual disappearance of third-party cookies. This technical evolution comes with a legal adaptation that requires a fundamental rethinking of strategies for collecting and using data for advertising purposes.

The alternative solutions that are emerging (unified identifiers, interest cohorts, fingerprinting) each raise specific legal questions as to their compliance with the GDPR and the ePrivacy directive. The line between legitimate personalisation and intrusive profiling is being redrawn, requiring increased vigilance in the deployment of these new technologies.

Transparency of trackers remains a fundamental obligation, whatever the technology used. Users' consent must be collected in a clear, specific manner and prior to any collection of data for advertising purposes. The mechanisms for refusal must be as accessible and easy to use as the acceptance mechanisms, a balance that is sometimes difficult to maintain without compromising marketing performance.

Accountability is establishing itself as a central requirement: the e-merchant must not only comply with the regulations but also be able to demonstrate this compliance at all times. This obligation requires the establishment of technical and legal documentation relating to the data processing carried out, as well as regular internal audit procedures.

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The new frontiers of marketing: metaverse, NFTs and augmented reality

Immersive technologies open up fascinating but legally uncertain new marketing perspectives. The exploitation of virtual spaces, the creation of augmented reality experiences or the distribution of promotional NFTs fall within a relative legal vacuum that legislators are only just beginning to fill.

Intellectual property in the metaverse constitutes a major challenge: how can a trademark or a design be effectively protected in these new environments? Conventional filing strategies must be adapted to cover these emerging uses, with particular attention to the relevant classes of goods and services.

Promotional NFTs raise unprecedented legal questions at the intersection of securities law, intellectual property and consumer protection. Their legal classification remains uncertain in many jurisdictions, creating a significant regulatory risk for pioneering brands.

Augmented reality experiences, for their part, raise specific questions regarding liability and safety. An e-merchant offering augmented reality visualisation features must ensure that it warns of the potential risks (movement in physical space, reduced attention) and secures the data captured by these devices.

Turning legal constraints into a competitive advantage

In this context of growing legal complexity in digital marketing, a proactive and strategic approach to the law becomes a genuine differentiation lever. Legal constraints, far from being mere obstacles, can be transformed into value-enhancing commercial arguments when they are fully integrated into the company's strategy.

Ostentatious compliance consists of turning one's scrupulous respect for the rules into an element of positive communication. An e-commerce site that highlights its exemplary practices regarding data protection or that communicates clearly about its ethical commitments strengthens consumer trust, particularly among the segments most sensitive to these issues.

Regulatory anticipation also makes it possible to gain a head start on the competition. Identifying upcoming legal developments and proactively adapting one's practices offers a twofold advantage: avoiding the costs of emergency compliance and capitalising on an image of a responsible and innovative company.

From this perspective, investment in legal expertise no longer represents a cost centre but a genuine strategic investment, a generator of value and customer preference. The companies that have understood this fully integrate the legal dimension from the very design of their marketing strategies, in a "legal by design" logic that simultaneously optimises commercial performance and legal security.

Towards legally responsible digital marketing

The era of unrestrained digital marketing is coming to an end, giving way to a new approach in which commercial performance and legal responsibility must necessarily coexist. This evolution, far from being a constraint, represents a tremendous opportunity to rethink digital strategies from a more sustainable and more consumer-respectful perspective.

E-merchants who are able to navigate this complex regulatory environment with agility will enjoy a decisive competitive advantage. Beyond mere compliance, it is indeed a new conception of marketing that is emerging, in which transparency, ethics and respect for fundamental rights become central values, aligned with consumers' growing expectations regarding brand responsibility.

This transformation admittedly requires sometimes profound adaptations, but it paves the way for more authentic and more enduring customer-brand relationships. In this new paradigm, legal expertise is no longer peripheral but central to the development of the marketing strategies that will shape tomorrow's e-commerce.