Regulations on Dark Patterns

[YAGAY andSUN]

Dark patterns have become a growing concern globally, with regulators in various regions moving to address the use of manipulative design practices that mislead consumers or coerce them into actions they would not normally take. Different countries have implemented or are working on implementing frameworks to curb the use of these practices. Below is an overview of regulations on dark patterns in several countries.

1. European Union’s (EU’s) Regulations:

• The Consumer Protection Cooperation (CPC) Regulation: The EU has recognized dark patterns as harmful to consumer interests. The CPC Regulation allows national consumer protection authorities to act against unfair commercial practices, including dark patterns. These unfair practices violate the Unfair Commercial Practices Directive (UCPD), which prohibits misleading actions and omissions.
• General Data Protection Regulation (GDPR): Although GDPR does not explicitly mention dark patterns, it requires transparency and informed consent, which dark patterns often circumvent. The use of manipulative consent designs (e.g., pre-ticked boxes) could violate GDPR's principles on obtaining consent.

Impact: The EU has been at the forefront of tackling dark patterns. The European Consumer Organization (BEUC) has also been vocal about these issues, pushing for stricter enforcement of consumer protection rules.

2. United States’ (USA) Regulations:

• Federal Trade Commission (FTC): The FTC has taken action against companies using dark patterns. In 2021, the FTC issued a policy statement clarifying that the use of dark patterns constitutes unfair or deceptive practices under the FTC Act. The Commission is actively investigating dark patterns that influence user behaviour in online purchases, subscriptions, and data collection.
• California Consumer Privacy Act (CCPA): The CCPA prohibits companies from using manipulative tactics to obtain consumer consent for data processing. While not directly addressing dark patterns, it tackles deceptive consent mechanisms, such as hidden opt-ins or misleading “Do Not Sell My Data” buttons.
• California Privacy Rights Act (CPRA): The CPRA builds on the CCPA and introduces new provisions that limit how companies can use consent and opt-out mechanisms. It aims to ensure consumers have clear choices regarding their data and are not tricked into accepting data-sharing practices.

Impact: The U.S. has started making strides in addressing dark patterns, particularly in the areas of privacy and e-commerce, with agencies like the FTC pushing forward enforcement actions.

3. China’s Regulations:

• Consumer Protection Law: China’s Consumer Protection Law prohibits deceptive practices that may lead to consumer harm. However, the law does not specifically target dark patterns. There is also growing attention to consumer rights and data protection, especially as China drafts laws to regulate AI and digital platforms.
• Personal Information Protection Law (PIPL): Effective from 2021, China’s PIPL provides greater oversight of consumer data privacy. While it does not directly address dark patterns, it does prohibit deceptive or misleading practices related to the collection of personal data, which can intersect with dark patterns.

Impact: China’s consumer protection laws are evolving, but specific regulations on dark patterns are still emerging. Consumer organizations have raised concerns about the use of dark patterns in e-commerce and social media platforms.

4. Australia’s Regulations:

• Australian Consumer Law (ACL): Under the ACL, businesses are prohibited from engaging in unfair or misleading conduct. Dark patterns, such as tricking consumers into making purchases or sharing personal data, would fall under these provisions.
• The Australian Competition and Consumer Commission (ACCC): The ACCC is responsible for enforcing consumer protection laws and has taken action against deceptive practices in digital spaces, including dark patterns in e-commerce.

Impact: Australia has robust consumer protection laws, but there is a growing need to specifically address digital manipulation and dark patterns in the evolving digital marketplace.

5. Japan’s Regulations:

• Consumer Protection Act: Japan’s Consumer Protection Act prohibits deceptive practices that mislead or deceive consumers. While dark patterns are not directly addressed, these practices would likely fall under provisions concerning misleading advertisements and unfair business practices.
• Personal Information Protection Act (PIPA): The PIPA regulates the collection and use of personal data and includes provisions to prevent manipulative consent mechanisms.

Impact: Japan has strong consumer protection laws, and as digital platforms grow, the government is likely to pay more attention to dark patterns in the context of consumer rights and data protection.

6. South Korea’s Regulations:

• Act on the Consumer Protection in Electronic Commerce: South Korea’s Electronic Commerce Act prohibits deceptive practices, including using manipulative or misleading design techniques that trick consumers into actions they didn’t intend, such as automatic renewals or hidden fees.
• Personal Information Protection Act (PIPA): South Korea’s PIPA includes provisions on informed consent for data collection, which addresses some aspects of dark patterns.

Impact: South Korea has advanced data protection laws, and its regulatory framework is increasingly focusing on user rights in the digital economy, including addressing potential dark patterns.

7. Turkey’s Regulations:

• Consumer Protection Law: Turkey’s Consumer Protection Law prohibits deceptive advertising, including dark patterns, and mandates transparency in business practices.
• Personal Data Protection Law (KVKK): Turkey’s KVKK aligns with the EU GDPR, emphasizing the need for clear, informed consent in data collection and preventing misleading consent mechanisms associated with dark patterns.

Impact: While Turkey has robust consumer protection and data privacy laws, further refinement is needed to address dark patterns explicitly, particularly in the context of digital products and services.

8. India’s Regulations:

• Consumer Protection Act, 2019: The CPA prohibits unfair trade practices, including misleading or coercive tactics that fall under dark patterns. However, there is no specific regulation dedicated to dark patterns.
• E-commerce Rules, 2020: These rules require online platforms to provide clear and transparent information about products, including fees, returns, and cancellations, which addresses some dark pattern concerns.
• Digital Personal Data Protection Act, 2023: This Act requires transparency in data processing and clear, informed consent from users. Dark patterns that manipulate user consent would likely violate this provision.

Impact: India’s laws are evolving, with a focus on protecting consumers in the digital age. While specific dark pattern regulations are still limited, India is moving towards more robust frameworks that tackle deceptive practices in digital platforms.

Path Forward as Technology Evolves

As technology advances, especially with the growth of AI, machine learning, and personalized user experiences, the use of dark patterns will likely evolve. To effectively combat dark patterns, the following steps are critical:

• Regulatory Updates: Regulatory bodies must regularly update laws to address emerging digital manipulation tactics and ensure they apply to new technologies and user interactions.
• Increased Transparency: Digital platforms should adopt practices that prioritize transparency, informed consent, and user autonomy.
• Consumer Awareness: Educating consumers about dark patterns is crucial so that they can recognize and avoid manipulative designs.
• Cross-Border Cooperation: As digital platforms often operate globally, international cooperation between regulatory bodies can help enforce consistent standards and practices regarding dark patterns.

Conclusion

• Dark patterns pose a significant challenge to consumer rights, particularly in the rapidly evolving digital economy. While several countries have begun addressing these deceptive practices through consumer protection laws, data privacy regulations, and digital commerce rules, much work remains to be done globally. As technology continues to evolve, regulations must keep pace with new techniques used by businesses to manipulate users.
• Countries such as the EU, USA, and India have made strides in regulating dark patterns, but further specific provisions and stricter enforcement mechanisms are necessary. Additionally, consumer awareness and global cooperation will play a crucial role in tackling this issue effectively.