ABSTRACT
Dark patterns have become increasingly pervasive in online choice architectures, encompassing practices like subscription traps, hiding information about fees, pre-selecting options by default, nagging, and drip pricing. Efforts to effectively regulate dark patterns face the challenge that they often operate in the grey zone between legitimate persuasion techniques and clearly illegitimate methods of influencing consumer behavior such as coercion and deception.
This Article focuses on the legal response to dark patterns in the European Union. It provides a comprehensive mapping of European Union legislation expressly addressing dark patterns, including the Digital Services Act, the draft Data Act, the Consumer Rights Directive and the Consumer Credit Directive II. The Article argues that these laws protect biased consumers and adopt autonomy as a normative lens to assess dark patterns. Consequently, regulating dark patterns in European Union law means regulating for autonomy. This normative lens is under-researched, and the existing literature has not yet produced a robust autonomy framework for regulating dark patterns. Developing such a framework is essential for any legal system aiming to regulate dark patterns to safeguard consumer autonomy …
Brenncke, Martin, Regulating Dark Patterns (September 30, 2023), Notre Dame Journal of International and Comparative Law, forthcoming.
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