Regulating "dark pattern" practices: Protecting consumer autonomy in digital choice environments

Activity: Talk or presentation typesOral presentation


It is often said that behavioural public policy aims to enhance individual and total welfare. This paper argues that personal autonomy, as an intrinsic value rather than merely a means to an end, should also be a central objective of behavioural public policy. To illustrate this contention, the paper considers recent European Union laws that expressly protect consumers from so-called dark pattern practices in online choice environments or, equivalently, expressly protect consumers from commercial practices in online choice environments that exploit consumer behavioral biases (behavioural exploitation). I show that these laws adopt personal autonomy as their objective and regulate specific cases of autonomy violations. Regulating behavioural exploitation in European Union law means regulating for autonomy. To properly understand and interpret these laws, it is crucial to apply a framework not rooted in behavioural law and economics but rather in autonomy theory and exploitation theory.

Furthermore, these European Union laws adopt a nuanced conception of personal autonomy that integrates insights from behavioural science. This paper demonstrates that it is possible to derive this normative conception of personal autonomy from the main tool of European Union consumer policy, the information paradigm. The information paradigm and the European Union laws governing behavioural exploitation are deeply connected through their shared foundational conception of autonomy. Despite claims that the information paradigm assumes consumers to be rational economic actors, this paper contends that the information paradigm can have an autonomy-based justification. Specifically, European Union consumer laws in digital choice environments protect consumers as autonomous persons. They facilitate and protect consumers’ ability to make an ideal autonomous decision rather than the ideal autonomous decision in and of itself. What this means is that EU consumer law accepts consumers’ own (conscious or subconscious) principles of decision-making and consumers’ own decision to decide unreflectively in specific choice contexts as an act of an autonomous person. These laws acknowledge the diverse approaches individuals take in allocating their “mental bandwidth”, thus respecting consumers as autonomous persons. This conception of consumer autonomy as a normative benchmark for decision-making diverges significantly from the principles of rational choice theory.

A critical distinction exists between non-reflective decision-making based on one’s own decision-making principles, one’s own individual management style, and non-reflective decision-making induced by a distorting external influence. EU laws regulating behavioural exploitation in digital choice environments address such distorting external influences. The paper works out a normative taxonomy encompassing six categories of autonomy violations, specifically tailored for the assessment and regulation of dark patterns that exploit consumer behavioral biases. These categories delineate the contentious boundary between acceptable influences on consumer decision-making and autonomy violations that may warrant regulation in online choice environments. These categories are: (i) undermining mandated information, (ii) deception, (iii) inducing contractual agreements without reflection, (iv) negative friction, (v) non-neutral presentation of choice options, and (vi) manipulation.
PeriodJun 2024
Event title3rd International Behavioural Public Policy Conference
Event typeConference
LocationCambridge, United KingdomShow on map
Degree of RecognitionInternational