Why Regulation of Dark Patterns Is Here to Stay

Consumer protection regulators across a variety of jurisdictions are taking on the challenge of combating online “dark patterns” through targeted enforcement actions and new rulemaking initiatives. Broadly speaking, dark patterns are user interface techniques that benefit an online service by leading users into making decisions they might not otherwise make. Some dark patterns deceive users, while others exploit cognitive biases or shortcuts to manipulate their actions. But businesses complain that authorities’ newly found attention to the issue of dark patterns risks targeting legitimate persuasion techniques that have been long used in the marketplace. Alternatively, they complain that dark patterns are a squishy or amorphous concept and that the lack of standards creates an unacceptable degree of regulatory uncertainty. This article examines the future of dark patterns regulation for the tech industry and explains why the issue is not a passing fad. I argue that businesses should prepare for continued scrutiny of their practices and should develop proactive mechanisms to address regulatory risk.

By Mihir Kshirsagar^[1]

I. INTRODUCTION

Consumer protection regulators across a variety of jurisdictions are taking on the challenge of combating online “dark patterns” through targeted enforcement actions and new rulemaking initiatives. Broadly speaking, dark patterns are user interface techniques that benefit an online service by leading users into making d