Understanding dark patterns: a guide for businesses

What are dark patterns?

Dark patterns are user interfaces that are designed to trick users into taking actions that they might not have taken otherwise. These patterns are often used to manipulate users into making purchases, signing up for services, or sharing personal information. They can be found on websites, mobile apps, and other digital platforms.

Dark patterns in legislation

The European Union has recently taken steps to address the issue of dark patterns. The Digital Services Act (DSA) became law in the EU in the autumn, and includes the first express prohibition on dark patterns in EU law. The European Data Protection Board (EDPB) has also issued guidelines on dark patterns in social media platform interfaces, which provide advice on how to recognize and avoid them. The DSA is the most recent legislation which will only apply to “online platforms”.

An online platform refers to a digital service that enables interactions between two or more sets of users who are distinct but interdependent and use the service to communicate via the internet. The phrase “online platform” is a broad term used to refer to various internet services such as marketplaces, search engines, social media, etc.

This means not all e-commerce sites are being defined as such an online platform and therefore the DSA is not applicable. Now even if the webshop falls outside the scope of the DSA, this doesn’t allow it to use dark patterns which would be illegal in any case under the Unfair Commercial Practice Directive as dark patterns “materially distort or are likely to materially distort the economic behaviour with regard to the product of the average consumer”

When does the legislation come into effect?

The DSA is already active for Very Large Online Platforms (VLOP’s), these are platforms that serve 10% of the European population. Other entities are applicable from the 17th of February.

What to do as a business?

If you are a business owner, it is important to be aware of the risks associated with dark patterns. Using dark patterns can damage your reputation and lead to legal consequences. To avoid these risks, you should ensure that your user interfaces are transparent and easy to use. You should also provide users with clear and concise information about your products and services, and obtain their consent before collecting any personal data.

In addition, you should avoid using any design elements that might be misleading or confusing to users. For example, you should avoid using pre-checked boxes or other default settings that might encourage users to take actions that they might not have taken otherwise. You should also avoid using any design elements that might create a sense of urgency or scarcity, as these can be used to manipulate users into making hasty decisions.

By following these guidelines, you can help ensure that your business is not associated with dark patterns and that your users are treated fairly and transparently.