A proposal for the Digital Fairness Act (DFA) aims to tackle dark patterns designed to manipulate consumers online. Christoph Busch, an academic based at Osnabrück University in Germany, has researched consumer law and digital services. He reviewed draft leaks of the act before the European Commission formally announced it on Wednesday (11 November). Speaking to EUobserver, Busch broke down how the act seeks to protect people using the internet.
Could you start by explaining what dark patterns are?
Christoph Busch: Dark patterns is a catchy term that refers to various types of manipulative design features – how user-interface design is used to steer consumers in various directions.
There are many different examples. An example is ‘confirmshaming’. If you buy a ticket on a website and are asked whether you want to buy insurance, and you click ‘no’, a window may pop up asking, ‘Do you really want to carry the risk for you and your family?’ Things like that.
Some complain that businesses will have to comply with yet another EU law. Why is the Digital Fairness Act needed?
There is already quite a bit in the regulatory space, but existing legislation has limited scope.
The Digital Services Act addresses online intermediary services, but the digital space does not only consist of online marketplaces and platforms. It addresses issues such as recommender systems and advertising on platforms. But web shops and various online gaming business models and other players are not covered by the Digital Services Act. So there are consumer protection gaps.
As for the EU Kids Act, it focuses on the protection of minors. But addictive design features also affect adults, including gamification in online shopping. I think there is still a need for targeted amendments to the existing regulatory framework: not just another layer on top, but targeted, focused gap-filling.
What has gone into the European Commission’s proposal of the Digital Fairness Act?
There has been a lot of research in many areas, including addictive design and subscriptions. I am not sure to what extent my research in particular contributed, but phenomena such as dark patterns and engagement-maximising or engagement-enhancing design have been matters of research for many years. Now is the time to translate those insights into regulation.
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You recently warned that under-regulation and over-regulation both carry costs. Where is the ideal midpoint?
Both consumers and businesses can benefit from clearer and more targeted provisions, as long as they do not become too burdensome for businesses. It is about getting the balance right.
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