Luiza Jarovsky (Tel Aviv University, Buchmann Faculty of Law) has posted Dark Patterns in Personal Data Collection: Definition, Taxonomy and Lawfulness on SSRN. Here is the abstract:
Dark patterns (DP) consist of user interface design choices that manipulate the data subject’s decision-making process in a way detrimental to his or her privacy and beneficial to the service provider. An important part of the study of DP is understanding the cognitive biases they exploit. A cognitive bias is a ‘systematic (that is, non-random and, thus, predictable) deviation from rationality in judgement or decision-making’. DP exploit them, negatively affecting the data subject’s decision-making process. In the present Article, I propose a taxonomy for DP. The overall goal of the proposed taxonomy is to help us to better understand and address the legal challenges behind DP, especially how designers affect the data subject’s decision-making process. The GDPR is silent about the exploitation of cognitive biases, manipulative interface designs and negative interferences in the decision-making process. It also misses the opportunity to unpack the fairness principle and to present occasions in which unfair practices could spread within the data protection realm, for example through design. To curb DP, fairness is a central concept, as it reflects the need to balance the asymmetries between controllers and data subjects.
