Dark Patterns: Marketing Gets a Stricter Legal Framework
The ban on dark patterns aims to put a stop to problematic marketing practices. We reveal what’s still allowed – and where you need to tread carefully.
Dark patterns: marketing in the gray zone
“Only two left!” or “Leaving so soon?” These kinds of phrases on websites pressure us into placing an order quickly or rethinking our intention to cancel a subscription. Influencing customers in this way is permitted. However, if vendors take it too far by concealing information, making false or misleading statements, or unduly manipulating users, it becomes immoral and illegal. The challenge lies in navigating this boundary in such a way that the vendor’s interests in promoting the product are upheld while protecting consumers from being pressured into making bad decisions.
The fine lines surrounding dark UX patterns mean that designing a website calls for a sensitive approach. After all, it’s only natural for us as marketing professionals to analyze users’ click behavior and to want to persuade them and move them through a sales funnel as seamlessly as possible. But this is exactly where the temptation to resort to dark pattern tactics lurks – however, regulations are now tightening up.
A definition of dark patterns and the legal situation
What are dark patterns? The term “dark patterns” refers to the intentional use of website designs and processes that aim to make users take decisions that they would not have taken of their own free will.
When marketing pressures and manipulates instead of persuading, it clearly crosses a line. Numerous lawmakers also take this view and want to regulate dark pattern tactics. In the EU, the Digital Services Act (DSA) was adopted in 2022 to ban dark patterns. The act is intended to create a safer online environment in which users’ rights are protected and to level the competitive playing field for companies.
Point 1 of Article 25 of the Digital Services Act reads:
“Providers of online platforms shall not design, organise or operate their online interfaces in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions.”
Examples of dark patterns
No option to reject cookies
“Do you accept cookies on this website?” It’s hard to escape this question online. But when the layout is designed to make rejecting cookies extremely difficult, it’s an example of dark UX. Intentionally deploying dark UI patterns can be a way to get users to share their personal data involuntarily.
Confirmshaming: guilting users as a dark pattern tactic
“Confirmshaming” is a neologism that refers to the use of language that shames or embarrasses users for not taking a desired action. For example, in order not to subscribe to a newsletter, you might have to check the box next to a statement such as: “I don’t want to hear about unique news.”
Huh? Confusing language
Dark patterns in e-commerce often take the form of unclear statements or a preselected option. This category of dark UX design includes double negatives that are confusing and often not transparent – sometimes you can’t be sure what the statements actually mean, even after reading them twice.
Dark patterns in marketing: the legal view
Dark patterns no longer merely concern marketing departments – they are now on the political agenda. The EU and its member states have begun to pass regulations governing these practices. The problem: The European Commission has not yet issued any official guidelines setting out how to implement the DSA and maintain legal compliance. For all those operating in this field, such guidelines are needed to provide consistent advice and legal certainty.
Despite the lack of official guidance, risks are already emerging – especially in the case of potential dark patterns in e-commerce when users are intentionally guided through online stores.
Based on the legal position as it is currently understood, the experts at the law firm SKW Schwarz have drawn up a whitepaper. In it, they shed light on the legal framework governing dark patterns in the EU, the different forms they can take and how they influence consumers, as well as the impact of the new legislation on companies. In addition, the lawyers share practical recommendations for ethically correct and legally sound marketing.
The dark patterns whitepaper by SKW Schwarz sets out guidance for companies operating online platforms for users in the EU and includes:
- A sound analysis of the legal framework to help marketing experts navigate this complex area with confidence
- Concrete recommendations for ethically sound digital marketing
- Practical guidance on how to distinguish between legitimate marketing practices and problematic dark pattern tactics that mislead users
Download your copy of the German-language whitepaper here: Dark Patterns: Where Are the Boundaries Between Permitted Marketing and Undue Influence?
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