Abstract
Dark patterns are as omnipresent as they are annoying. In the European Union, the Unfair Commercial Practices Directive and Digital Services Act (and in the near future, possibly, the Digital Fairness Act) regulate dark patterns. In this article, I argue that the conceptual treatment of dark patterns in the literature is problematically imprecise. Descriptive and normative considerations are often not clearly distinguished and the use of key influence concepts–e.g., deception, manipulation–also tends to be imprecise. I argue that we need to appreciate the inherent conceptual entwinement of descriptive and normative elements in a plausible concept of dark patterns. To that effect, I propose that the “dark” in dark patterns refers to two distinct–but intrinsically linked–senses of dark, one of which is descriptive in nature, and one of which is normative. I call this the double darkness of dark patterns. By embracing dark patterns’ double darkness, we can also theorise more systematically how dark patterns undermine autonomy. This, in turn, is very helpful because both the UCPD and DSA safeguard autonomy without defining or theorising it. Instead, these pieces of legislation indirectly operationalise autonomy by specifying normative influence-types (e.g., deception, manipulation, coercion, undue influence, harassment) which can “distort” or “impair” decision-making. The double darkness approach helps explaining how both senses of darkness can be systematically linked to the normative influence-types so central to legal interpretation, thereby providing more conceptual clarity specifically for legal and policy discussions of dark patterns.
