Dark Patterns, Enforcement, and the Emerging Digital Design Acquis: Manipulation beneath the Interface

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Abstract

The term ‘dark patterns’ is commonly used to describe manipulative or exploitative techniques implemented into the user interface of websites and apps that lead users to make choices or decisions that would not have otherwise been taken. Legal academic and policy work has focused on establishing classifications, definitions, constitutive elements, and typologies of dark patterns across different fields. Regulators have responded to these dark patterns with several enforcement decisions related to data protection, privacy violations, and rulings protecting consumers. By analysing such enforcement decisions, we conclude that this deceptive design is inappropriately attributed to the user interface when some patterns are embedded in the system architecture. With this in mind, the article also analyses the emerging digital design acquis of the European Union. The Digital Markets Act and Digital Services Act, the proposals for a new Data Act, and the AI Act are critiqued for their suitability to regulate deceptive design over the entirety of the deceptive design visibility spectrum.

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Published

02.05.2024

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Refereed Articles