'Dark Patterns': The Case for Regulatory Pluralism

23 Pages Posted: 5 Aug 2020

Date Written: June 12, 2020

Abstract

'Dark patterns' is a term commonly used by the web collective to describe a user interface that exploits users into doing something that they would not normally do. It is a coercive and manipulative design technique used by web designers when some sort of action is needed from a user - typically to begin the processing of personal data or indication of agreement to a contract. As dark patterns can compromise legal requirements like consent and privacy-by-design and legal principles found in both regimes, like fairness and transparency, this article analyses ‘dark patterns’ from a regulatory perspective. Two frameworks are critiqued: the European Union’s regime for data privacy and consumer protection. The paper also provides an overview of the enforcement measures available for the regulation of dark patterns. It concludes that a pluralistic approach that mixes the strengths of one regulatory regime while compensating for its weaknesses by the use of the other is needed to harness dark patterns.

Keywords: dark patterns, consumer protection, data protection, law, regulation

Suggested Citation

Leiser, Dr Mark, 'Dark Patterns': The Case for Regulatory Pluralism (June 12, 2020). Available at SSRN: https://ssrn.com/abstract=3625637 or http://dx.doi.org/10.2139/ssrn.3625637

Dr Mark Leiser (Contact Author)

eLaw/Leiden University ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

HOME PAGE: http://https://www.universiteitleiden.nl/en/staffmembers/mark-leiser#tab-1

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