Dapde project coordinator Quirin Weinzierl has published a new article on the topic of Dark Patterns (only available in German)
The essay takes a behavioral economics look at the phenomenon of Dark Patterns.
The discussion on behavioral insights and law (Behavioral Law and Economics) revolves around two issues: the limits of the use of behavioral regulatory tools (nudging) and the criticism of established regulatory concepts, especially the information model. Dark Patterns raise a third issue: protection against the exploitation of behavioral anomalies by private parties.
The paper classifies Dark Patterns in terms of (behavioral) economics and law. It develops basic guidelines for the constitutionally required protection of autonomy as well as for a regulatory response to Dark Patterns.
Central insights are two: On the one hand, the law must protect users and on the other hand, the law, such as the GDPR, does not meet this requirement. The consent regulations and their common interpretation by supervisory authorities and literature are unable to provide effective protection against dark patterns.
Accordingly, the interpretation of existing regulations must be adjusted. In addition, the EU legislator should include the requirement "[explicit] and without controlling influence" in Article 9 II a of the GDPR, for example, and thus selectively supplement the protection granted by the interpretation of the voluntariness requirement of Article 4 No. 11 of the GDPR.