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The beginning of the end for dark patterns?

What happened?

Last week, two US senators introduced a bill called the DETOUR (Deceptive Experiences To Online Users Reduction) that would prohibit large internet platforms (those with over 100 million monthly active users) such as Facebook, Twitter and Google from using deceptive design features as methods to trick users into handing over their personal data. They argue that any privacy policy that involves consent of its users is weakened by the presence of so-called dark patterns.

What does this mean?

Tricking users into sharing private data is just one of many dark patterns that are used, as others include manipulating someone into doing something they did not set out to do, or preventing price comparison. Dark patterns are a form of nudging that is considered wrong. Good nudging, according to the winner of the Nobel Prize in Economics Richard H. Thaler, fulfills three conditions: 1) All nudging should be transparent and never misleading; 2) It should be as easy as possible to opt out of the nudge, preferably with as little as one mouse click; 3) There should be good reason to believe that the behavior being encouraged will improve the welfare of those being nudged. The DETOUR bill, however, is not only meant to serve the “nudged” (e.g. by protecting personal privacy), it is also intended to protect fair competition: due to the use of dark patterns, large internet platforms have gained an unfair advantage over competitors that have respected their users’ choices on privacy. If the bill is approved, platforms will be prohibited from designing, modifying, or manipulating a user interface that impairs users in making an educated decision before consenting to give companies access to their personal data.

What’s next?

In order to fight the full array of dark patterns, Thaler suggests we stop rewarding firms that use dark patterns by following through on their come-ons, and instead reward companies that honor our best interests. When it comes to gathering personal data, awareness of dark patterns indeed seems to cause many users to reconsider a visit or membership to platforms that apply them (e.g. Facebook has started to lose members because of its dark patterns that aim to gather personal data). However, one of the main reason all sorts of dark patterns are successful, is that people are unconsciously manipulated, which clouds good judgement in the first place and therefore stands in the way of an educated decision. Moreover, in some cases, users feel they experience more benefit than harm with firms that use dark patterns (e.g. most people are aware that many airline websites aim to manipulate someone into taking expensive additional services, but the convenience or offers the website provides are valued to be more important). It therefore seems that the most promising option to fight dark patterns is by political intervention such as the DETOUR bill.