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Deceptive Patterns: Book by Harry Brignull

Part 6: The road ahead

Deceptive patterns have become a hot topic, both in the tech world capitalising on it, and in the legislative and regulatory world working to bring it under control.

As time has passed, it has become clear that deceptive patterns aren’t just a matter of user rights. Although things like unintended financial transactions and privacy infractions are harmful to individuals, it’s the consequences to society as a whole that are most worrying.1 Deceptive patterns disproportionately affect the most vulnerable groups in society, and the companies most willing to use deceptive patterns gain an unfair advantage against any competing companies that have a more ethical or user-centred mission.2 If left unchecked, the small number of large, powerful monopolies we have today will entrench their power even further. You can imagine how capable such companies will be – their large, hard to monitor platforms together with armies of data scientists, psychologists and designers will create bigger, better breeding grounds for all sorts of new forms of manipulation and deception.

Although deceptive patterns prevent users from making decisions in their own best interests, they are also anti-competitive, making it difficult for companies to compete with those willing to use them. Misdirection can lure users to use a business on false pretences (e.g. deceptive testimonials), and establish false consent and false contractual agreement when they enter a business relationship (selling their personal data or binding them into arbitration agreements). Obstruction can make it hard for users to leave or to take their data with them when they want to migrate to a competitor. All of this means that tech companies aren’t just manipulating individuals, they’re manipulating the marketplace – and preventing fair competition. Princeton academics Mathur, Mayer and Kshirsagar support this idea, arguing that dominant providers can ‘abuse their position of monopoly power and diminish competition by making it look like consumers independently selected their product rather than from a series of dark patterns that disfavor offers from competitors’.3 Antitrust experts Jay L Himes and Jon Crevier also propose that deceptive patterns create an unfair advantage to first movers and disfavour companies that enter the market later on.4 Once a first-mover employs deceptive patterns to capture users, drain their attention, and impair their autonomy to leave or shop elsewhere, this increases the cost for rivals to compete.

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29. Enforcement challenges
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30. Changes afoot in the European Union