Dark Patterns & Manipulative Design

In the first part, some of the foundational conceptual and philosophical issues underlying the concept of dark patterns will be brought forward. Fundamental concepts akin to dark patterns require further elaboration. One can argue that the - quasi- ontological question of what a dark pattern is remains unanswered. In spite of regulatory and academic classifications and taxonomies of dark patterns, uncertainty persists concerning the threshold that behaviour influence must cross before it qualifies as a dark pattern. In that sense, the topic of dark patterns elicits conceptual and philosophical issues. For instance, should dark patterns equate to online manipulation? How is it different from related influence-types, such as deception, nudging, impairment, or distortion? In other words, what concept of fairness underlies (un)accepted dark patterns? Addressing these higher-order conceptual issues can have a concrete bearing on legal and policy responses given that newly adopted (and ongoing) EU legislation enshrines overarching principles, such as prohibition of manipulation and safeguarding of autonomy without defining these terms, while at the same time providing for novel provisions specifically regulating dark patterns.

These novel dark pattern-specific provisions lead to the second part this volume will address, namely some of the legal issues underlying dark patterns. Herein, a first issue concerns the siloed relevant legal standards. As a catch-all term, dark patterns fall under various instruments with a broader material scope. In the EU, dark patterns are currently regulated through three critical pieces of legislation, namely, the General Data Protection Regulation (GDPR), the ePrivacy Directive (ePD), and the Unfair Commercial Practices Directive (UCPD) establishing legal standards for transparent and fair data processing and marketing practices. Consideration should be given to several high-profile policy guidance from regulatory bodies such as the European Data Protection Board (EDPB), the Organisation for Economic Co-operation and Development (OECD), the European Consumer Organisation (BEUC)], the Federal Trade Commission, among others. This also leads to somewhat siloed legal scholarship (e.g, consumer law, data protection, competition law), even though some key normative issues such as standards of fairness, or concepts of (users’) harms are cross-cutting. In other words, what is missing is a clear overview of the regulatory issues pertaining to dark patterns. On the other hand, these legal frameworks of general applicability can be contrasted with a host of new dark patterns-specific provisions (e.g., requirements that interfaces should be designed in specific ways) that are emerging from the EU’s ongoing digital (regulation) strategy. Such provisions can be found in the Digital Services Act, Digital Markets Act, Data Act, and AI Act. What remains to be seen is how this legislative patchwork will work together. Finally, it is important to consider enforcement issues. For instance, what types and theories of consumer harm and legal thresholds can trigger enforcement actions? Equally, it is useful to hold an overview of the type of enforcement actions taken by (consumer, competition and data protection) authorities. Data suggests that certain areas are prioritised over others (e.g., algorithmic dark patterns seem to be so far neglected), but how are these choices made, what is the impact with regard to the online protection of consumers and to the overall enforcement of online markets?

The third and last part of the book presents the internal perspective of the study of dark patterns and focuses on the intricate relationship between human behavior and computer interaction. Beyond consolidating the way we reason upon dark patterns, it is also important to devote some attention to newer types of dark patterns and the new challenges they might pose. These challenges range from the multiple factors that contribute to the degree of "darkness" in dark patterns, and to the dynamic nature of how they shift and change over time. The section culminates with a rich analysis of how Web users perceive and often misunderstand dark patterns, offering a comparative look at these perceptions and misconceptions in both the EU and the US. This comprehensive perspective offers critical insights into the future landscape of dark patterns and their impact on digital experiences.