Reluctant incrementalism. EU Law of dark patterns

• Department of Law

The EUI Information Society Working Group hosts a paper presentation by Dr. Szymon Osmola (Tel Aviv University).

Abstract

Dark patterns are features of the online interface manipulate us into making detrimental decisions: spending more money, sharing more data, or wasting more time than necessary. Due to immense harms they cause, dark patterns are at the forefront of regulation around the world, with the EU offering the most sophisticated solutions in this regard. This paper investigates EU law of dark patterns, both its core and ancillary elements, offering a critical evaluation of them. Drawing on the rules versus standards debate, it argues that the EU’s approach to regulating dark patterns can be described as reluctant incrementalism . Whereas rules are generally more desirable to standards in effectively combating dark patterns, the EU impedes the transition from the latter to the former, by postponing relevant decisions in time and outsourcing them to other institutions. Relying mostly on soft law measures, combined with imperfect enforcement of its provisions, EU law of dark patterns cannot effectively tackle them. These shortcomings are not addressed by the new wave of legislation enacted within the EU’s digital strategy. The paper argues that a more expedient transition from standards to rules is needed to adequately address immense harms caused by dark patterns.

The paper will be circulated to the registered participants.