Making Choice Meaningful – Tackling Dark Patterns in Cookie and Consent Banners through European Data Privacy Law

Abstract

Dark patterns steer users into taking decisions they would not have made otherwise. They are widespread in ‘cookie banners’ where they nudge or otherwise lead users into ‘consenting’ to intensive and controversial processing of personal data, such as online tracking and behavioural targeting. The prevalence of dark patterns in the privacy context is not only due to an enforcement deficit. It is also due to a lack of legal provisions that effectively implement the principles of privacy by design and by default. The legislator should address privacy dark patterns by ensuring meaningful choice of data subjects.

Keywords: Dark Patterns, Privacy, Cookies, Tracking, Choice

JEL Classification: K29