The collective welfare dimension of dark patterns regulation

• Published date: 01 January 2023
• Author: Fabiana Di Porto,Alexander Egberts
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/eulj.12478

VARIETY: ORIGINAL ARTICLE

The collective welfare dimension of dark patterns

regulation

Fabiana Di Porto

*

| Alexander Egberts

**

Abstract

Dark Patterns are interface design elements that can influence users' behaviour in digital environ-

ments. They can cause harm, not only on an individual but also a collective level, by creating behav-

ioral market failures, reducing trust in markets and promoting unfair competition and data

dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent

laws, and thus call for policy intervention. This article reviews how existing and proposed laws in

Europe and the US, namely the EU Digital Services Act and Digital Markets Act as well as the

U.S. DETOUR and AICO Acts, address these collective dimensions of welfare and add to existing

protection. We find that the novel legislative measures attain that goal to varying degrees. However,

the collective welfare perspective may prove useful to both support a risk-based approach to the

enforcement and provide guidance as to which practices should be addressed as priority.

1|INTRODUCTION

Dark Patterns are elements of user interface design,

1

which steer the user towards engaging in or refraining from a

certain action, the result of which usually aligns with the interest of the architect of the digital surrounding.

2

Examples include adding unwanted products into the customer's digital shopping basket without informing them,

3

* Fabiana Di Porto is Professor of Law and Technology, University of Salento and LUISS University, Rome. Member of the Executive board of the

Academic Society for Competition Law (ASCOLA). Former Forcheimer Visiting Professor, Law Faculty, Hebrew University of Jerusalem (2019/20).

** Alexander Egberts is a Research Fellow at the Max Planck Institute for Research on Collective Goods, Bonn.

Both authors jointly conceived this article and drafted the Introduction and Conclusion. Fabiana Di Porto wrote Ch. 3, 5 and 6.2; Alexander Egberts wrote

Ch. 2, 4, and 6.1.

The authors did not receive any sources of funding or in-kind support in the preparation of this article; they have no conflict of interests to disclose.

1

User interface design focuses on how information is presented in digital human–computer interfaces and is part of user experience design: D. Norman and

J. Nielson, The Definition of User Experience (UX) (2023), retrievable at https://www.nngroup.com/articles/definition-user-experience.

2

Although they both use choice architecture to influence behaviour, Dark Patterns differ from “nudges”; see R. Thaler and C. Sunstein, Nudge: Improving

Decisions About Health, Wealth and Happiness (HarperCollins, 2008): with nudges individuals are helped to take decisions that are more in line with their

(assumed) self-interest; with Dark Patterns, on the contrary, users are made to behave in a particular way for the benefit of the choice architect.

3

A practiceknown as the “Sneak intoBasket”pattern:J. Luguri and L. Strahilevitz,‘Shining a Light on Dark Patterns’,(2021)13Journal of Legal Analysis,43, 67.

Received: 10 November 2023 Accepted: 13 November 2023

DOI: 10.1111/eulj.12478

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use,

distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes.

© 2023 The Authors. European Law Journal published by John Wiley & Sons Ltd.

114 Eur Law J. 2023;29:114–141.

wileyonlinelibrary.com/journal/eulj

preventing users from cancelling ongoing subscriptions,

4

or tricking them into giving consent to the processing of

their data.

5

These design elements can be found in all kinds of digital systems, such as websites, mobile applications,

computer software or even operating systems. Usually, through Dark Patterns the user is manipulated to either dis-

close more of their personal data, buy greater amounts of goods or services, or spend more time within a specific

system.

6

The term ‘Dark Patterns’—after being introduced in a blogpost by British UX designer Harry Brignull

7

—

quickly took on and received a lot of attention from media outlets, interest groups and social media channels.

Although it has also met criticism,

8

the phrase has become established in several academic circles

9

and has finally

been adopted by legislators.

10

The normative accusation against such design practices is that they systematically abuse users' cognitive biases

and heuristics to induce them to behave in a way that is contrary to their actual preferences.

11

In other words, the

“darkness”of the design lies in the fact that operators employ them to influence the user to act against their own

interests, and therefore erode their ability to make rational and autonomous decisions. This has triggered the con-

cern of policymakers and regulatory authorities in the EU,

12

as well as in the US,

13

who have explicitly acknowledged

a need for action.

As a result, both the EU and the US are currently working on legislative measures designed to reduce the use

of deceptive designs. In the US through the American Innovation and Choice Online (AICO) Act and the Deceptive

Experiences to Online Users Regulation (DETOUR) Act.

14

In the EU, Dark Patterns are addressed in the Digital

Markets Act (DMA) and the Digital Services Act (DSA), which are already force.

15

In fact, the phenomenon is not

4

An example of “Roach Motel”pattern: Luguri and Strahilevitz, above, n. 3.

5

See A.E. Waldman, ‘Cognitive Biases, Dark Patterns, and the “Privacy Paradox”’, (2020) 31 Current Opinion in Psychology, 105, who focuses on cognitive

biases and the significance of the privacy paradox; see also C.M. Gray et al. ‘Dark Patterns and the Legal Requirements of Consent Banners: An Interaction

Criticism Perspective’(2021), Proceedings of the 2021 CHI Conference on Human Factors in Computing Systems (providing an interdisciplinary assessment of

Dark Pattern legality in cookie banners).

6

See, e.g., A. Mathur, J. Mayer and M. Kshirsagar, ‘What Makes a Dark Pattern …Dark? Design Attributes, Normative Considerations, and Measurement

Methods’, (2021) CHI Conference on Human Factors in Computing Systems,1–18, retrievable at https://doi.org/10.1145/3411764.3445610. This and all

following online materials were last retrieved on 10 November 2023.

7

Originally, Brignull defined Dark Patterns as ‘bad design patterns [which have] been crafted with […] a solid understanding of human psychology, to trick

users into doing things they wouldn't otherwise have done’, see H. Brignull, ‘Dark Patterns: Dirty Tricks Designers Use to Make People Do Stuff’, (2010)

Blogpost, retrievable at https://90percentofeverything.com/2010/07/08/dark-patterns-dirty-tricks-designers-use-to-make-people-do-stuff/.

8

The term has been criticised for reproducing colonialist thought structures,see C. Sinders. ‘What's in a Name? Unpacking Dark Patterns versus Deceptive

Designs’, (2022) Blogpost, retrievable at https://medium.com/@carolinesinders/whats-in-a-name-unpacking-dark-patterns-versus-deceptive-design-

e96068627ec4.

9

In computer science, see, e.g., C. Gray, Y. Kou and B. Battles. ‘The Dark (Patterns) Side of UX Design’, (2018) Proceedings of the 2018 CHI Conference on

Human Factors in Computing Systems, Paper No. 534; in psychology, see, e.g., Waldman, above, n. 5; in law, see, e.g., M.R. Leiser and M. Caruana, ‘Dark

Patterns: Light to be Found in Europe's Consumer Protection Regime’, (2021) Journal of European Consumer and Market Law, 237; in philosophy, see, e.g., S.

Ahuja and J. Kumar, ‘Conceptualizations of User Autonomy within the Normative Evaluation of Dark Patterns’, (2022) 24 Ethics and Information

Technology, 52, to name just a few.

10

See, e.g., Recital 67 DSA, below, Section 4.1.1.

11

See Mathur et al., above, n. 6; Waldman, above, n. 5; R. Calo, ‘Digital Market Manipulation’, (2014) 82 George Washington Law Review, 995; Luguri and

Strahilevitz, above, n. 3.

12

F. Lupiáñez-Villanueva et al., ‘Behavioural Study on Unfair Commercial Practices in the Digital Environment: Dark Patterns and Manipulative

Personalisation: Final Report’, (2022) EU Commission Policy Paper, retrievable at https://data.europa.eu/doi/10.2838/859030 (hereinafter: EU Dark

Patterns Report 2022), 30, 32, 58, 64; European Commission, ‘Guidance on the Interpretation and Application of Directive 2005/29/EC’, (2021) EU

Commission Policy Paper, 4.2.7; European Data Protection Board, ‘Guidelines 03/2022 on Deceptive Design Patterns in Social Media Platform Interfaces’,

(2022), EU Policy Paper, retrievable at https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-032022-deceptive-design-patterns-

social-media_en (hereinafter: EDPB Guidelines 2022).

13

See US Federal Trade Commission, ‘“Bringing Dark Patterns to Light”Workshop’, (2021), Workshop Proceedings, retrievable at https://www.ftc.gov/

news-events/events/2021/04/bringing-dark-patterns-light-ftc-workshop. For the EU, see the Commission Notice concerning unfair business-to-consumer

commercial practices in the internal Market, 2021/C526/01, 99–102.

14

The US has proposed two bills in the 116th and 117th congressional session which address Dark Patterns: The American Innovation and Choice Online

Act (“AICO”) H.R. 3816 American Innovation and Choice Online Act (hereinafter “AICO Act”) 2021, 117th Congress (2021–2022) (available at https://

www.congress.gov/bill/117th-congress/house-bill/3816/text) paired with S.2992, 117th Congress (2021–2022) (available at https://www.congress.gov/

bill/117th-congress/senate-bill/2992); and the Deceptive Experiences to Online Users Reduction (“DETOUR”) Act, H.R. 6083, 117th Congress (2021–

2022), S. 3330, on 7 December 2021. The DETOUR Act has been reintroduced to the 118th congressional session on 27 July 2023, retrievable at https://

www.congress.gov/bill/118t-hcongress/senat-ebill/2708.

15

Digital Markets Act (DMA): Regulation (EU) no. 2022/1925, 12 October 2022 (the DMA has become applicable from 2 May 2023). Digital Services Act

(DSA): Regulation (EU) no. 2022/2065 (entered into force on 16 November 2022, and to become applicable as of 1 January 2024).

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