Dear Readers,
The term “dark patterns,” though it may conjure up images of spycraft (or even black magic) refers to user interface (“UI”) design techniques that are designed to manipulate and deceive users into taking courses of action that they might not have otherwise taken. The term was coined by Harry Brignull in 2010, a user experience consultant, and has gained increasing attention in recent years as a concern in the field of design ethics. They can take many forms, such as hiding important information, confusing users with misleading visuals or wording, or making it difficult to cancel or unsubscribe from a service. Such patterns are often used by companies to increase sales, gain more user data, or promote engagement on their platforms. Importantly, they can have negative impacts on user trust and satisfaction.
Although arguably the entire history of consumer protection law has been a story of combating dark practices in the physical world under different names, in recent years, there has been a growing explicit focus on the negative impact of dark patterns on user trust and behavior online. As a result, there have been several efforts to combat these deceptive practices. Perhaps most explicitly, in 2019, the U.S. Senate introduced the DETOUR Act (Deceptive Experiences To Online Users Reduction), which aims to prohibit the use of dark patterns and other deceptive design practices in online interfaces. This is reflected in other initiatives worldwide aiming at consumer protection. The articles in this Chronicle outline these efforts and their potential impact on the behavior of online firms towards their consumers.
To set the scene, Maneesha Mithal & Stacy Okoro provide an outline of the history of the regulation of dark practices, from its origin in classic consumer protection law, to more recent initiatives to counter such behavior online. The article helpfully sets out the concrete reasons why regulators are so focused on this issue at present, outlines the measures that regulators worldwide (notably in the U.S. and Europe) have been taking to tackle the issue, the potential limitations to these efforts, and the principles that online businesses should adhere to in order to avoid running afoul of this new wave of scrutiny.
Building on these themes, Christine Chong & Christine Lyon explore how regulators are increasingly looking beyond the terms of companies’ privacy policies to scrutinize the structure of their user interfaces, websites, apps, and other online services, and challenging concrete aspects of designs that potentially manipulate consumer choice through “dark patterns.” The article examines the developing dark pattern regulatory enforcement landscape from a data privacy perspective, with a focus on recent U.S. and EU developments.
Looking specifically towards developments in the EU and the UK, Katrina Anderson, Nick Johnson & Amelia Hodder examine the EU’s Unfair Commercial Practices Directive (“UCPD”), and the UK’s Consumer Protection from Unfair Trading Regulations 2008 (“CPUT”). As the authors remark, these rules are increasingly being used by regulators to challenge dark patterns. In addition, dark patterns have also been challenged on the basis that they undermine the principles of the EU General Data Protection Regulations (“GDPR”), which remains in force in the UK post-Brexit. However, as the authors note, 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 given course of action by a business will cross the threshold from being a controversial marketing technique to being an illegal dark practice. In light of this, the authors query whether new legislation expressly outlawing dark patterns, notably the EU Digital Services Act and the EU Data Act, will finally provide more clarity on where the legal lines are to be drawn?
Turning again to the U.S., Ryan C. Smith discusses how the Federal Trade Commission is ramping up its enforcement in this regard. $350 million in settlements were announced in late 2022 relating to dark patterns. Nevertheless, many businesses may be uncertain as to what dark patterns exactly are, or may think they are immune. The authors emphasize that the FTC’s enforcement practices are industry-agnostic and derived from previous enforcement actions over the last decade. By examining these current and past trends, the authors elaborate a set of best practices for UI design that do not present unnecessary hurdles to consumers.
Advocating for a slightly more cautious approach, Victoria de Posson acknowledges the widespread consensus that design practices involving psychological manipulation and deceit should be banned. However, rather than more legislation, the author underlines the key challenge of developing clear guidance based on robust research of what might constitute a dark pattern, assessing on a case-by-case basis the real impact and intention behind a practice. She warns that regulators should not go for the easy way out and standardize online interfaces, noting that in Europe, there is a well-developed acquis of consumer law addressing “dark patterns” both online and offline. Instead of adding another layer of rules, the author argues that policymakers should focus on better and more consistent enforcement of what is in place already.
Indeed, as Frédéric Marty & Jeanne Torregrossa argue, although the concerns discussed above demonstrate that there is a legitimate concern surrounding dark patterns, there are a certain number of risks and limits that need to be taken into consideration in terms of public policy design. For example, personalization is not a competitive problem as such. Personalized recommendations, especially based on algorithmic predictions grounded on massive data collection and processing, can contribute to economic efficiency and consumer satisfaction. Secondly, “dark patterns“ are not the exclusive privilege of dominant digital firms. They may be implemented in brick-and-mortar stores (albeit with less efficiency and refinement). They can also be implemented by non-dominant operator. While it is therefore legitimate to be concerned about dark patterns, possible remedies should be carefully considered.
In sum, the recent initiatives to regulate “dark patterns” mark important steps towards ensuring a fair and transparent digital environment. As Kyle R. Dull & Julia B. Jacobson underline, it will be key for all players to maintain awareness of the different types of dark patterns and to take steps to protect their businesses by focusing on offering consumers the information and experience needed to make fully informed decisions.
While the complexity of the issue poses challenges for regulators and businesses alike, it is clear that the issue cannot be ignored. With more countries and organizations joining the effort to combat this issue, regulators hope to see greater accountability and responsibility from businesses in the future. All underline the need to continue monitoring and evaluating the effectiveness of these regulations, and to remain vigilant against new forms of deceptive design practices that may arise, and, perhaps most importantly, all prioritize user autonomy and trust.
As always, many thanks to our great panel of authors.
Sincerely,
CPI Team
