Regulating Exploitative Online Choice Architectures that Undermine Consumer Autonomy

Alapfogalmak

Dark patterns in online choice architectures undermine consumer autonomy and warrant regulatory intervention to safeguard biased consumers' ability to make free and informed decisions.

Kivonat

The article examines the regulation of dark patterns in online choice architectures under EU consumer law. Dark patterns are defined as online choice architectures that exploit consumer behavioral biases. The article makes two key contributions:

It specifies the conception of autonomous decision-making that underpins EU consumer law, challenging the dominant view that the information paradigm assumes consumers are rational economic actors. The article posits that the information paradigm actually holds the key for protecting consumers from dark patterns, as empowerment and protection are deeply connected through their shared foundational conception of autonomy.

It develops a taxonomy comprising six categories of autonomy violations that are particularly relevant for evaluating and regulating dark patterns in online choice architectures. These categories concretize the existing EU laws governing dark patterns and offer policymakers a framework when deliberating the regulation of other instances of dark patterns.

The article analyzes the relevant provisions in EU consumer law, including the Unfair Commercial Practices Directive, the Digital Services Act, the Directive on Financial Services Contracts Concluded at a Distance, and the Data Act. It demonstrates that these provisions (also) protect biased consumers and adopt autonomy as a normative lens to assess dark patterns.

Statisztikák

"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."
"Regulators around the world have started to express concerns that such practices are causing substantial consumer detriment."
"The growing use of artificial intelligence algorithms by businesses is said to offer significant possibilities to enhance the scale and efficiency of these and other dark patterns, thereby raising further concerns about consumer protection."

Idézetek

"Dark patterns in online choice architectures undermine consumers' autonomy."
"Empowerment and protection are deeply connected through their shared foundational conception of autonomy."
"The categories of autonomy violations within this framework may be of particular relevance for U.S. legislation, as they explain why specific dark pattern practices, currently under scrutiny by U.S. regulators such as the Federal Trade Commission, violate autonomy and may warrant legal intervention."

Főbb Kivonatok

Regulating Dark Patterns

by Martin Brenn... : arxiv.org 04-03-2024

https://arxiv.org/pdf/2310.00340.pdf

Mélyebb kérdések

How can the autonomy framework developed in this article be applied to assess and regulate dark patterns in other jurisdictions beyond the EU, such as the United States?

The autonomy framework developed in the article can be applied to assess and regulate dark patterns in other jurisdictions, like the United States, by focusing on protecting consumer autonomy as a normative lens. This involves evaluating how online choice architectures may undermine consumers' ability to make free and informed decisions. By identifying practices that distort or impair consumer autonomy, regulators can target dark patterns that exploit behavioral biases or manipulate decision-making processes. The framework can be adapted to align with the legal and regulatory landscape of different jurisdictions, ensuring that consumer autonomy is safeguarded in online interactions.

To what extent do dark patterns that do not necessarily exploit consumer behavioral biases, but still undermine consumer autonomy, warrant regulatory intervention?

Dark patterns that undermine consumer autonomy, even if they do not exploit specific behavioral biases, still warrant regulatory intervention. The key focus should be on ensuring that consumers have the freedom to make informed choices without being unduly influenced or deceived by deceptive practices in online interfaces. By targeting dark patterns that impair autonomy, regulators can protect consumers from manipulative tactics that hinder their ability to make decisions in their best interests. Regulatory intervention is necessary to uphold consumer rights and prevent unfair commercial practices that erode autonomy.

What are the broader societal implications of the widespread use of dark patterns in online choice architectures, beyond their impact on individual consumer autonomy?

The widespread use of dark patterns in online choice architectures has broader societal implications beyond individual consumer autonomy. These implications include:

Trust and Transparency: Dark patterns erode trust between consumers and businesses, leading to a lack of transparency in online interactions.
Market Distortion: Dark patterns can distort market competition by giving certain businesses an unfair advantage through manipulative practices.
Ethical Concerns: The use of dark patterns raises ethical concerns about the manipulation of consumer behavior and the erosion of autonomy.
Legal and Regulatory Challenges: Addressing dark patterns requires robust legal and regulatory frameworks to protect consumers and ensure fair practices in the digital economy.
Consumer Empowerment: Combatting dark patterns can empower consumers to make more informed choices and reduce the risk of exploitation in online transactions.