Manipulation through Design: A Law and Economics Analysis of EU Dark Patterns Regulation

Abstract

Dark Patterns are ubiquitous: deliberate choices in website- or app-design that exploit unobservant or irrational behavior of users, tricking them into reaching agreements or consenting with settings that are not in line with the users’ actual preferences. This umbrella term covers a broad variety of different online choice architecture manipulations, which differ in their effectiveness or conspicuousness, but all share one core mechanic: abusing heuristics to influence online behavior.

Even though Dark Patterns have not yet been explicitly targeted by EU regulation, they are partially covered by the existent body of EU legislation. This thesis identifies to which extent the consumer and data protection acquis already provides legal boundaries for specific Dark Patterns. It explains why (further) Dark Patterns regulation is desirable from a law and economics perspective and develops specific proposals as to how such interventions should be designed: Legislation should add on to existing regulatory mechanisms by amending them with concrete rules that take behavioral insights into account. Furthermore, the thesis explains why regulators should take a two-step approach to regulation, first establishing information disclosure duties before determining the level of optimal intervention.

Finally, as evidence-based regulation is identified to be vital to prevent overregulation, the thesis proposes a risk-based assessment to measure the effect of Dark Patterns. It suggests the design of an experimental study to identify Dark Pattern influence in the cookie banner context. It allows to both test existing hypotheses and explore new explanatory approaches to how Dark Patterns influence behavior.

Keywords: Dark Patterns, Sludging, Legislative Costs, EU Regulation

JEL Classification: K24, L51, D91