Dark Patterns – A European Regulatory Perspective

Dark Patterns are deceptive and manipulative features of a user interface that push or nudge consumers into making certain choices that are not in their best interests. Such features are increasingly catching the eye of consumer and data protection regulators across Europe, including in the UK, the EU and beyond. However, considerable uncertainty remains over their legality and indeed their definition itself. The EU’s Unfair Commercial Practices Directive (“UCPD”) at an EU level, and Consumer Protection from Unfair Trading Regulations 2008 (“CPUT”) in the UK are increasingly being used by have allowed regulators to begin to challenge the fairness of the application of dark patterns. Dark patterns have similarly challenged on the basis they been shown to undermine some of the principles of the General Data Protection Regulations (“GDPR”). However, the law continues to be difficult to apply in the absence of practical guidance or a body of case law. The question therefore remains over when a dark pattern will cross the threshold from divisive marketing technique to illegal practice. With new legislation expressly outlawing dark patterns [,notably the EU Digital Services Act  and the EU Data Act,] on its way, will this provide more clarity on where the legal lines are drawn?

By Katrina Anderson, Nick Johnson and Amelia Hodder^[1]

I. INTRODUCTION TO DARK PATTERNS

Dark patterns is a term that refers to deceptive and manipula