Nagging and meatballs – Dark Patterns in Consent Management
on 24.01.2022 by Dr. Ramona Greiner
Dark patterns are familiar to most of us, especially from the so-called “social media”, but they are increasingly finding their way into cookie banners and consent management. The GDPR provides very clear guidelines on how valid consent must be given, namely, above all, voluntarily and informed. The moment users give consent based on manipulative dark patterns, we have a data protection problem and it is becoming apparent that the topic will receive even more attention and regulation in the future.
In our paper, we would like to show you what dark patterns are, which forms are particularly common in consent management, and teach you how you can recognize dark patterns as a user and avoid them as a website or app operator. Furthermore, we will explain the difference between illegal dark patterns and permissible “nudging” and give you an overview of the relevant legal bases and judgments. Finally, we illustrate which problems arise from manipulative and complicated consent banners with regard to accessibility and why good and user-respecting consent management should be understood as a trust-building measure in the customer relationship.
- Dark patterns are manipulative design elements. They are being used more and more frequently in consent management to achieve the highest possible opt-in rates.
- The most common dark patterns in consent management aim to mislead or make opting out unnecessarily lengthy and complicated.
- It is not always possible to draw a clear line between permissible nudging and impermissible dark patterns. Mostly, the two differ in the degree of manipulation, the pressure with which a certain action is stimulated in the user, and the intention or the result.
- There is no explicit “Dark Pattern law” yet(!), but some regulations that can already be applied.
- The use of Dark Patterns in Consent Management also reduces the accessibility of your website.
- Consent management should be understood as a trust-building measure in the customer relationship. Dark patterns, on the other hand, create intransparency and mistrust.