Harmful Online Choice Architecture

The design of online user interfaces plays a pivotal role in shaping consumer choices. Terms such as ‘manipulative’, ‘malicious’, and ‘deceptive’ have been used to illustrate the method by which design distorts a consumer’s ability to make autonomous and informed choices. While these descriptors are often used as exemplary, rather than required criteria, their use underscores the significance of addressing deceptive practices and harmful choice architecture.
 

EU Legislative Landscape: 

Various legal texts in the EU consumer acquis address the issue of choice architecture, each with a differing scope and approach. The Consumer Rights Directive, the Data Act, and the Digital Services Act are among the texts that refer to safeguarding consumer autonomy in the digital sphere. Additionally, provisions within the GDPR, the UCPD, and the DMA contribute to the overarching framework governing the way choices are framed online. 

The European Commission is close to publishing its digital fairness fitness check of EU consumer law, which could become a stepping stone for a novel “Digital Fairness Act” to be presented early in the next Commission’s mandate. A key issue to be considered as part of this review is what is colloquially termed “dark patterns” (alternatively, “harmful user interface design” or “online choice architecture”) and their qualification as an unfair commercial practice.
 

The CERRE Report: 

In this new report, CERRE Research Fellows Christoph Busch and Amelia Fletcher delve into the topic of choice architecture, with a specific focus on deceptive patterns and their associated harm.  

By critically evaluating existing frameworks, identifying emerging challenges, and proposing targeted interventions, policymakers and stakeholders can collaboratively navigate the evolving landscape of digital commerce, fostering trust and empowering consumers in the digital age. 

Through their analysis of the current regulatory framework, examination of industry best practices, the authors propose actionable measures to address deceptive user interface design. 

The ten principles identified by the authors are:

• Principle 1: Do not restrict regulation to only addressing ‘intentional’ harmful effects.
• Principle 2: Regulation should be clear about the ‘mechanism of effect on users’, but not be restricted only to ‘deceptive’ online choice architecture.
• Principle 3: Regulation should be clear about the nature of the harm involved, and who it pertains to.
• Principle 4: Recognise intrinsic limits to informed and autonomous decision-making.
• Principle 5: Recognise that context is important for assessing online choice architecture – it can be beneficial, as well as harmful, and can be used positively.
• Principle 6: Exercise of rights should be easy and not undermined by online choice architecture.
• Principle 7: Ensure that regulation addresses online choice architecture across multiple user path elements.
• Principle 8: Consider special rules for automated personalised choice architecture.
• Principle 9: Behavioural testing should be encouraged, or even required in specific circumstances, and regulators should be able to access test results.
• Principle 10: Mitigate risks of regulatory overlap or inconsistency.