A Theory of Exploitation for Consumer Law: Online Choice Architectures, Dark Patterns, and Autonomy Violations


Commercial practices that exploit consumer behavioural biases (behavioural exploitation) are an increasingly prevalent issue in online choice architectures. EU policymakers have started to expressly regulate such practices. What remains unclear about this type of regulation is when an online choice architecture exploits biased consumers. What is the legal meaning and significance of exploitation in the digital environment? Even though the concept of exploitation is frequently used in scholarship concerning behavioural exploitation such as “dark patterns”, it is rarely defined. The concept’s normativity is mostly ignored, remains underdeveloped, and lacks solid foundations. This Article aims to close this gap by developing a theory of exploitation for (behavioural) consumer law in the EU that applies to online choice architectures and unfair commercial practices in general. The Article eschews welfare analysis and instead relies on the philosophical discourse on exploitation theory. Even though this discourse is mostly ignored by the literature, the Article submits that this analytical framework fits better with the existing goals and scheme of EU consumer law compared to an approach to legal analysis that is driven by promoting consumer welfare through market efficiency. Ultimately, the Article defends the autonomy theory of exploitation and contends that regulating behavioural exploitation in online choice architectures means regulating for autonomy.

Publication DOI: https://doi.org/10.1007/s10603-023-09554-7
Divisions: College of Business and Social Sciences > Aston Law School
College of Business and Social Sciences > Aston Business School
Additional Information: Copyright © The Author(s) 2023. This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit https://creativecommons.org/licenses/by/4.0/.
Uncontrolled Keywords: Behavioural exploitation,Consumer biases,Dark patterns,Online choice architecture,Unfair commercial practices,Business, Management and Accounting (miscellaneous),Economics and Econometrics
Publication ISSN: 0168-7034
Last Modified: 05 Jul 2024 07:50
Date Deposited: 15 Dec 2023 13:39
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Related URLs: https://link.sp ... 603-023-09554-7 (Publisher URL)
http://www.scop ... tnerID=8YFLogxK (Scopus URL)
PURE Output Type: Article
Published Date: 2023-12-15
Published Online Date: 2023-12-15
Accepted Date: 2023-11-10
Authors: Brenncke, Martin (ORCID Profile 0000-0002-3195-8014)



Version: Published Version

License: Creative Commons Attribution

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