Addictive design of digital services

Today the Committee on the Internal Market and Consumer Protection (IMCO) of the European Parliament adopted the draft report on Addictive design of online services and consumer protection in the EU single market (file to the procedure is here). This times nicely with the increased attention give to addictive online design by the European Commission, which intends to devote one of its two panels to this topic at the forthcoming 3rd Annual Digital Consumer Event (held on 30 November - more information and agenda is here). 

By Rodion Kutsaiev on Unsplash

The report draws attention to psychological vulnerabilities that 'certain' platforms and tech companies exploit online. The main concerns are about addictive, behavioural and manipulative design that maximises the frequency and duration of user visits. This is seen as leading to both non-material and material harm. Thus IMCO calls on the European Commission to conduct more evaluation whether new regulation could help 'close existing regulatory gaps with regard to consumer vulnerabilities, dark patterns and addictive features of digital services'. This follows from the assessment that existing measures (Digital Services Act and AI Act, but also Unfair Commercial Practices Directive) are insufficient to address these issues. As examples of dark patterns that current legislation would not consider as unfair the report mentions: infinite scroll, default auto play function, constant push notifications, read receipt notifications. 

Interestingly, in the report: 

• Point 3 - mentions the need to re-evaluate the main current notions of EU consumer law from the perspective of digital age, such as 'consumer', 'vulnerable consumer' and 'trader'. 
• Point 4 - draws attention to the limited function of transparency to fight deceptive design and calls for urgent need to assess whether certain practices should not be blacklisted under the UCPD (rather than transparently disclosed). 
• Point 6 - argues for (amongst others): 
• the integration of the concept of digital asymmetry into the UCPD; 
• reversal of the burden of proof for practices presumed to be addictive; 
• an obligation to ethically design digital services, which would be necessary to comply with professional diligence obligation.
• Point 7 - concerns the need to re-evaluate addictive and mental health effects of interaction-based recommender systems, incl. hyper-personalised systems. Overall, this point calls for the re-assessment of the desirability of online personalisation, and replacing recommender systems based on it with such that are based on chronological order or that give users more control.
• Point 8 - proposes introduction of the digital 'right not to be disturbed' by 'turning all attention-seeking features off by design'.
• Point 9 – calls for fostering of ethical design by default, which could be supported by the Commission upholding a list of good design practices. As best practices it mentions: 
• ‘think before you share’, 
• turning of all notifications by default, 
• more neutral recommendations, 
• up-front choice between colour and greyscale apps, 
• warnings when users have spent more than 15-30 minutes on a specific service, 
• automatic locks for certain services after a preset time of use, 
• weekly summaries of total screen time (but also with an option for a break-down), 
• in-app awareness campaigns on potential risks. Educational campaign should promote ‘self-control strategies to help individuals develop safer online behaviours and new healthy habits’.

The European Parliament intends for the principle of ethical design to be predominant for digital services and products (see press release here) in order to counteract harmful impact of digital addiction on mental health. The attention to mental health issues arising from online interactions, especially amongst minors, is rising, not only in the EU. The UK has just finished accepting submissions to its inquiry into Preparedness for online safety regulation (see here). This sensitive topic definitely requires more attention, thus we will be keeping an eye on the forthcoming discussions on this.

OECD report on Dark Patterns

 Yesterday, aka 26 October 2022, the OECD has released a report on Dark Patterns which had been in the making for almost two years. LLM students who would like to write about the topic or just about anyone looking for a clear intro to the subject - this report is your friend! It contains not only a helpful classification of different types of dark patterns but also a quite comprehensive review of relevant regulatory frameworks/interventions, known case-law and much (if not all, and if arguably too US-centred and English-based) of the literature you may also want to look at, including... Joasia's 2019 JCP paper The Transparent Trap! Kudos there.

A working definition is provided at the outset which may or may not gain traction in the field: dark patterns, accordingly, are 

"business practices employing elements of digital choice architecture, in particular in online user interfaces, that subvert or impair consumer autonomy, decision-making or choice. They often deceive, coerce or manipulate consumers and are likely to cause direct or indirect consumer detriment in various ways, though it may be difficult or impossible to measure such detriment in many instances."

[The first part of the report, where dark patterns are typified and their impact assessed, I skip for now - but you can find it all online!]

The report acknowledges that more enforcement is necessary in the EU, while ultimately praising the UCPD's relative ability to address the problem in comparison with other instruments: if on the one hand resonance with the black listed items in the annex makes it possible to address certain black patterns with a degree of legal certainty, the report observes, the "principle-based" prohibition of unfair commercial practices works quite well to cover technological and commercial developments like the ones at hand. 

One critical point that is (thankfully) mirrored in the report is known criticism of the average consumer standard: this standard is hard to square with consumers' apparent vulnerability to dark patterns & other online perils &, the report observes, seems particularly problematic in the context of increasing online personalisation. The report also highlights criticism of disclosure rules, in particular as a way of preventing consumers from falling for dark traps: it turns out, the report concludes, that all experiments trying to measure the effects of disclosures in this area failed to detect any serious improvement. Hence the relevance of information may be limited to broader education campaigns and possibly to a limited set of dark patterns. 

The report also interestingly reviews examples of technical supports that are being developed - essentially, dark pattern-blockers for one's browser. These are, apparently, useful in some cases but less so when the dark patterns is not to be "written away" in code (p 47). I would like an app like that though!

As a scholar who reads Law & Econ work with a mix of interest and skepticism, I was less impressed by the report's discussion of nudges on page 37, under "Digital choice architecture". The title reflects a trend that has been going on for a long time of course; the report, however, brings together under one technique concerns that may need to be kept separated. "Privacy by design", that is mentioned as example, is not the same as a "bright pattern" based on extrapolating "welfare enhancing" choices from supposed "preferences or expectations". While the report necessarily gives a limited overview on each issue, conflating privacy protection with "consumertarian" views and hard-core nudge advocates is to my mind quite problematic.

Anyway, this is really a good starting point but also, as far as I can tell, a fairly comprehensive restatement that those already in the debate will also benefit from. Recommended read!