Regulating Dark Patterns

Activity: Talk or presentation typesOral presentation


Dark patterns have become increasingly pervasive in online choice environments, encompassing practices like subscription traps, hiding information about fees, pre-selecting options by default, nagging, and drip pricing. Regulators around the world have started to express concerns that such practices are causing substantial consumer detriment. Efforts to effectively regulate dark patterns face the challenge that they often operate in the grey zone between legitimate persuasion techniques and clearly illegitimate methods of influencing consumer behavior such as coercion and deception.

This paper focuses on the legal response to dark patterns in online choice environments in the European Union. It discusses European Union laws expressly addressing dark patterns in online choice environments, including the Digital Services Act, the Data Act, and the Consumer Rights Directive. The paper contends that these laws protect biased consumers and adopt autonomy as a normative lens to assess dark patterns. Consequently, regulating dark patterns in European Union law means regulating for autonomy. This normative lens is under-researched, and the existing literature has not yet produced a robust autonomy framework for regulating dark patterns. Developing such a framework is essential for any legal system aiming to regulate dark patterns to safeguard consumer autonomy.

This paper addresses this gap in research with two principle contributions. First, it works out a specific conception of autonomous decision-making, rooted in the paradigm that providing consumers with information enables consumers to make an informed decision. Despite the widespread critique that the information paradigm is ineffective in empowering consumers by providing them with information, it actually holds the key for protecting consumers from dark patterns. That is because both the information paradigm and the provisions governing dark patterns in European Union law operate with the same underlying conception of autonomy. Empowerment and protection are deeply connected through their shared foundational conception of autonomy. This analysis also challenges the dominant position in the literature, which holds that the information paradigm assumes that consumers are rational economic actors.

Second, the paper offers a novel normative classification for dark patterns in online choice environments. It develops a taxonomy encompassing six categories of autonomy violations, specifically tailored for the assessment and regulation of dark patterns that exploit consumer behavioral biases. These categories serve multiple purposes. They uncover and make explicit the autonomy violations addressed by existing European Union legislation. They delineate the contentious line between acceptable influences on consumer decision-making and autonomy violations that may warrant regulation in online choice environments. They also provide policymakers in the EU and elsewhere with a framework when deliberating the regulation of other instances of dark patterns. The six categories of autonomy violations 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. The paper demonstrates how these categories apply to specific dark pattern practices in online choice environments such as drip pricing, subscription traps, default settings that maximize the collection of data, or website designs that effectively hide fees.
PeriodApr 2024
Event titleBritish and Irish Law Education and Technology Association, 39th Annual Conference
Event typeConference
LocationDublin, IrelandShow on map
Degree of RecognitionInternational