Hypervulnerability of elderly people after the digital transformation (also) of the banking sector. automation, datification and damage from defective smart products to vulnerable people

Abstract

The process of digitalization and digital transformation (without alternatives) in sectors as essential as the health, banking and financial system is causing older people (with or without disabilities) —who are not an intrinsically vulnerable population (per se)— to be placed “in a situation of vulnerability/ hypervulnerability.” Aware of this and, also, that the “digital disability” of older people constitutes a “relational” term with the digital environment, products and services that are not adapted to their needs due to the “lack of accessibility”, the “digital divide” and the discriminatory biases that are evident in “automated decisions based on AI” (credit scoring) in which older people are made invisible and prejudged due to their age. Celebrate that UNESCO, since 2023/2024, has proclaimed October 29 as World Codification Day; convinced of the need to promote digital literacy and digital cofication skills (typical of a data-enabled society) seeking equity and inclusion in the digital age of older people and people with disabilities. Furthermore, it welcomes the European Accessibility Law (2025), Regulation (EU) 2024/1689 on Artificial Intelligence and the new liability regime for defective products, contained in Directive 2024/2853, as well as Law 4/2022 by virtue of which the concept of vulnerable consumers was included in the TRLGDCU. It also claims that in the digital context and in the digital transformation of the banking and financial sector, older consumers are hypervulnerable given their digital vulnerability. It also celebrates that accessibility is being imposed on a mandatory basis and that the new product liability regime applicable to damages caused by AI systems expands the concept of product (including intangible goods and digital services), includes new types of compensable damages and identifies new responsible economic operators (such as online platforms or logistics service providers), facilitating, from an evidentiary point of view, the burden of proof and incorporating iuris tamtum presumptions aimed at facilitating access to compensation by injured persons: among whom, foreseeably, will be found, as vulnerable/hypervulnerable consumers, older persons, with or without disabilities.