Dark patterns are manipulation techniques designed to deceive users online into making decisions that do not fully align with their best interests. These practices violate consumer rights and raise serious ethical and legal concerns. This article aims to outline the legal regulation of dark patterns in the European Union and Hungary and examine their impact on consumer protection rights.
What Are Dark Pattern?
Dark patterns are design elements or user experiences that manipulate users into making decisions they would not have made under other circumstances. Some common examples include misleading consumers by presenting a product as “free,” only for it to lead to a long-term subscription. Another common practice is forcing users into hidden fees or obscure opt-in options.
Regulation in the European Union
The European Union is actively addressing the issue of dark pattern, particularly in the areas of consumer protection and data privacy law. The Directive 2019/2161/EU on consumer rights concerning unfair commercial practices stipulates that any commercial practice that deceives consumers is prohibited. Dark patterns fall under this category, as online providers often manipulate users during the decision-making process.
The Directive 2018/302/EU protects cross-border online consumer purchases and ensures that consumers are not manipulated by dark pattern when dealing with online services in other EU member states. This directive promotes fair competition by prohibiting online platforms from using dark patterns to gain an unfair advantage.
The GDPR and Dark Patterns
The General Data Protection Regulation (GDPR) of the EU protects the personal data of individuals and ensures that data is processed fairly and transparently. Dark patterns often violate the core principle of transparency embedded in the GDPR, as they frequently involve obtaining manipulative consent for personal data processing. For example, an online service might default to obtaining consent for data processing without properly informing the user.
Legal Regulation in Hungary
In Hungary, the regulation of dark patterns is governed by the Act No. XLVII of 2008 on consumer protection and the Civil Code (Act No. V of 2013). The consumer protection law stipulates that any commercial practice that deceives or pressures consumers is prohibited. It also gives consumers the right to seek legal remedies if their rights are violated by dark patterns.
The application of the GDPR in Hungary also plays a key role in combating dark pattern. Data controllers must not only ensure the protection of personal data but also respect the fair decision-making process of users. If dark patterns are used to manipulate consent for data processing, this constitutes an unlawful practice.
Legal Consequences and Penalties
The use of dark patterns can lead to significant legal consequences. Both EU and Hungarian laws provide for substantial fines against companies using unfair commercial practices. Under the GDPR, companies that use dark patterns and violate data protection regulations can be fined up to €20 million or 4% of their worldwide annual turnover. Additionally, consumers may seek compensation if they have made decisions influenced by manipulative practices.
Conclusion
The use of dark patterns presents a significant legal challenge in the digital marketplace, as it not only violates consumer protection rights but can also distort competition. The regulations in the European Union and Hungary are increasingly stringent in regulating these manipulation techniques to ensure consumers are protected and fair commercial practices prevail. Companies must ensure they do not manipulate users but instead offer them genuine decision-making freedom.
Dr. Katona Géza, LL.M. ügyvéd (Rechtsanwalt / attorney at law)
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Katona és Társai Ügyvédi Társulás
(Katona & Partner Rechtsanwaltssozietät / Attorneys’ Association)
H-106 Budapest, Tündérfürt utca 4.
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