Digital Arms for Digital Consumer Harms: Mapping Legal and Technical Solutions for Dark Patterns in EU Consumer Law

Technologists have been warning about online businesses using dark patterns — designs that may behaviorally manipulate consumers — in user interfaces since 2010. In recent years, dark patterns became a priority for consumer policy-makers, including in the EU. This thesis connects the academic debate on the regulation of dark patterns in EU consumer protection law with discussions on technology regulation in law and technology scholarship to provide a comprehensive overview of the opportunities for – and the problems that may arise in the process of – regulating dark patterns. This analysis shows how technology-neutral policies that do not engage with specific technological phenomena or the way they are developed may contribute to the low rates of compliance with EU consumer protection instruments in digital markets. The thesis also draws on web measurement literature to explore the technical feasibility of computationally detecting unlawful dark patterns in order to better enforcement in digital markets. In the course of this exercise, it shows how technology neutrality may also stand in the way of developing computational methods for digital enforcement purposes. The thesis thus presents a host of arguments challenging policy and academic preferences for technology-neutral regulation and proposes more technology-specific legal solutions for the regulation of dark patterns in EU consumer law. Its findings and recommendations are relevant for academics, policy-makers and enforcement authorities.