‘Let There Be Light!’ Dark Patterns Under the Lens of the EU Legal Framework

Abstract

Dark patterns can be found both offline and online in various shapes and sizes. They can take the form of aesthetically coloured ‘Accept’ buttons capable of cajoling users into accepting terms and conditions, trick questions and default settings which lure users into sharing more personal data, or even the manner in which supermarkets choose to stack packs of water in their back shelves while displaying sweets in the front at the checkout counter. These practices go by the name of dark patterns, as they systematically and covertly aim to influence individuals into making choices by inhibiting the control of their decision-making.

Dark patterns can be considered unethical since they do not take into account the interests of individuals, who, following the deployment of dark patterns become a means to an end. Relying only on ethics or social norms to prevent the use of dark patterns, however, is not effective given the difficulty in enforcing them. Thus, this paper will explore the underlying legal aspects of dark patterns.

Chapter 1 sets the scene by introducing the central research question of determining whether the EU legal framework needs a specific law to prevent and sanction the use of dark patterns. The first half of Chapter 2 reveals a taxonomy of dark patterns and further defines this concept before the second half delves into a legal analysis of the laws applicable to dark patterns. From privacy and data protection to consumer protection, media law, competition law or contract law, this legal analysis unveils the existence of a broad legal framework which can protect individuals’ decision-making process against deceptive, manipulative, coercive or excessively persuasive dark patterns.

Finally, Chapter 3 reveals the conclusions and recommendations of this paper. While the EU legal framework does not require a specific law to prevent and sanction the use of dark patterns, there is still a lack of awareness and enforcement. The solution, therefore, lies in a three-fold approach (individuals, companies, and authorities), which would leverage the best results in increasing awareness and enforcement in relation to dark patterns.

Keywords: dark patterns, regulation of choice architecture, manipulation, online behaviour

JEL Classification: K