Dark patterns: The case for regulatory pluralism between the European Unions consumer and data protection regimes

Abstract

"Dark patterns" is a generic term used by the design community and an increasing number of data protection academics to describe a variety of manipulative design techniques that compromise legal requirements like consent and privacy-by-design and legal principles like fairness and transparency. To assess the regulation of dark patterns, two legal frameworks of the European Union are compared and critiqued: first, an examination of relevant rules and principles of the General Data Protection Regulation (GDPR) leads to the conclusion that the principle of data-protection-by-design could be useful, but the lack of clarity about what constitutes fairness undermines the GDPR's ability to regulate dark patterns. Second, an examination of the 'fairness' principle in the EU's consumer protection acquis reveals a significantly further developed regime. After examination of the various enforcement mechanisms across both regimes, the Chapter concludes that a pluralistic approach that mixes the strengths of one regulatory regime while compensating for the weaknesses of the other is needed to harness manipulative design techniques like dark patterns.