'Dark Patterns': The Case for Regulatory Pluralism

Abstract

'Dark patterns' is a term commonly used by the web collective to describe a user interface that exploits users into doing something that they would not normally do. It is a coercive and manipulative design technique used by web designers when some sort of action is needed from a user - typically to begin the processing of personal data or indication of agreement to a contract. As dark patterns can compromise legal requirements like consent and privacy-by-design and legal principles found in both regimes, like fairness and transparency, this article analyses ‘dark patterns’ from a regulatory perspective. Two frameworks are critiqued: the European Union’s regime for data privacy and consumer protection. The paper also provides an overview of the enforcement measures available for the regulation of dark patterns. It concludes that a pluralistic approach that mixes the strengths of one regulatory regime while compensating for its weaknesses by the use of the other is needed to harness dark patterns.