Regulating Dark Patterns

Abstract

Dark patterns have become increasingly pervasive in online choice architectures, encompassing practices like subscription traps, hiding information about fees, pre-selecting options by default, nagging, and drip pricing. 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 Article focuses on the legal response to dark patterns in the European Union. It provides a comprehensive mapping of European Union legislation expressly addressing dark patterns, including the Digital Services Act, the draft Data Act, the Consumer Rights Directive and the Consumer Credit Directive II. The Article argues 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 Article 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. The Article posits that, despite the widespread critique that the information paradigm is ineffective in empowering consumers, it holds the key for protecting consumers from dark patterns. Empowerment and protection are deeply connected through their shared foundational concept of autonomy. This analysis challenges the dominant position in the literature, which holds that the information paradigm assumes that consumers are rational economic actors. Second, the Article offers a novel normative classification for dark patterns in online choice architectures. 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 architectures. They also provide policymakers in the EU and elsewhere with a framework when deliberating the regulation of dark patterns.