Positive or Zero-Sum Game: When Privacy by Design Meets Dark Patterns

43 Pages Posted: 2 Aug 2022 Last revised: 9 Jan 2023

See all articles by Karthik Venkatesh

Karthik Venkatesh

Villanova Charles Widger School of Law

Kamesh Shekar

The Dialogue

Date Written: August 1, 2022

Abstract

One of the foundational principles of Privacy by Design (PbD) is the 'Full functionality – positive-sum, not zero-sum'. Lately, we see many debates on privacy vs security, privacy vs data empowerment etc., while these are important debates, this principle states privacy should be a full functionality where technologies don’t trade-off privacy at the cost of others. But is the positive-sum game suggested through PbD possible when businesses resort to dark patterns? This paper tries to answer this question by discussing the business perspective of the dark patterns, which is less discussed in the literature. The paper tries to bring out the business purpose and incentives behind dark patterns. The paper also discusses the consumer perspective, i.e., harms created through dark patterns, to contour the business purpose. By juxtaposing and analyzing these perspectives, the paper shows that there might be a trade-off necessary for reaching optimality which is privacy respecting but less lucrative for businesses – a zero-sum game.

Keywords: Privacy by design, Dark patterns, consumer protection, consumer welfare, market manipulation, cognitive bias, positive sum game

Suggested Citation

Venkatesh, Karthik and Shekar, Kamesh, Positive or Zero-Sum Game: When Privacy by Design Meets Dark Patterns (August 1, 2022). Available at SSRN: https://ssrn.com/abstract=4178549 or http://dx.doi.org/10.2139/ssrn.4178549

Karthik Venkatesh

Villanova Charles Widger School of Law ( email )

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