While many are looking forward to the DSA to bring order against the use of dark patterns in online interfaces, the impact of this Regulation might be limited. The proposed ban of dark patterns will indeed only apply to the restricted category of providers of online platforms and the use of dark patterns, which are already covered under the Unfair Commercial Practice Directive (UCPD) and the General Data Protection Regulation (GDPR), will fall outside the scope of the DSA. Consequently, the DSA might not be the salvatory Regulation that many were hoping for.
Among the objectives of the proposed Digital Service Act (DSA), the European Commission is now listing a ban on using so-called dark patternson the interface of online platforms, referring to misleading tricks that manipulate users into choices they do not intend to make (e.g., pre-ticked consent box or hidden opt-out button). The European Parliament introduced this explicit prohibition via amendments made to the proposal in January 2022. By doing so, the EP finally responded to the urging calls for a regulation of dark patterns made by scholars, civil society associations (e.g., 5rights foundations, Center for Humane Technology, BEUC, or Norwegian Forbrukerrådet), and enforcement authorities (e.g., EDPB, French CNIL, British ICO and CMA, or Dutch ACM).
Even though the DSA is not the sole initiative addressing the issue. There are other similar attempts to regulation dark patterns both in the US (e.g., DETOUR Act, California Privacy Act, Colorado Privacy Act, a Washington Bill, or the review of a FTC’s guideline) and the EU (Digital Market Act). Nonetheless, the DSA currently provides the most advanced provisions on deceptive and manipulative interface designs to date.