Private Law Theory

ABSTRACT
Dark patterns have emerged in the last few years as a major target of legislators and regulators. Dark patterns are online interfaces that manipulate, confuse, or trick consumers into purchasing goods or services that they do not want, or into surrendering personal information that they would prefer to keep private. As new laws and regulations to restrict dark patterns have emerged, skeptics have countered that motivated consumers can and will protect themselves against these manipulative interfaces, making government intervention unnecessary. This debate occurs alongside active legislative and regulatory discussion about whether to prohibit dark patterns in newly enacted comprehensive consumer privacy laws. Our interdisciplinary paper provides experimental evidence showing that consumer self-help is unlikely to fix the dark patterns problem. Several common dark patterns (obstruction, interface interference, preselection, and confusion), which we integrated into the privacy settings for a video-streaming website, remain strikingly effective at manipulating consumers into surrendering private information even when consumers were charged with maximizing their privacy protections and understood that objective. We also provide the first published evidence of the independent potency of ‘nagging’ dark patterns, which pester consumers into agreeing to an undesirable term. These findings strengthen the case for legislation and regulation to address dark patterns. Our paper also highlights the broad popularity of a feature of the recent California Consumer Privacy Act (CCPA), which gives consumers the ability to opt-out of the sale or sharing of their personal information with third parties. As long as consumers see the Do Not Sell option, a super-majority of them will exercise their rights, and a substantial minority will even overcome dark patterns in order to do so.

Kugler, Matthew B and Strahilevitz, Lior and Chetty, Marshini and Mahapatra, Chirag, Can Consumers Protect Themselves Against Privacy Dark Patterns? (January 6, 2025), University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No 25-01.