Dark Patterns and the Legal Requirements of Consent Banners: An Interaction Criticism Perspective (2009.10194v2)

Abstract: User engagement with data privacy and security through consent banners has become a ubiquitous part of interacting with internet services. While previous work has addressed consent banners from either interaction design, legal, and ethics-focused perspectives, little research addresses the connections among multiple disciplinary approaches, including tensions and opportunities that transcend disciplinary boundaries. In this paper, we draw together perspectives and commentary from HCI, design, privacy and data protection, and legal research communities, using the language and strategies of "dark patterns" to perform an interaction criticism reading of three different types of consent banners. Our analysis builds upon designer, interface, user, and social context lenses to raise tensions and synergies that arise together in complex, contingent, and conflicting ways in the act of designing consent banners. We conclude with opportunities for transdisciplinary dialogue across legal, ethical, computer science, and interactive systems scholarship to translate matters of ethical concern into public policy.

An Expert Analysis of Consent Banner Design and Ethics

The paper "Dark Patterns and the Legal Requirements of Consent Banners: An Interaction Criticism Perspective" by Gray et al. explores a meticulous analysis of consent banners from interdisciplinary vistas, specifically bridging human-computer interaction (HCI), design, privacy, data protection, and legal disciplines. The investigation is premised on the ubiquitous, yet complex interactions users have with consent banners amid web services, contextualized within the GDPR and ePrivacy Directive frameworks.

The authors employ an interaction criticism methodology, dissecting consent banner design through designer, interface, user, and social impact lenses to illuminate tensions and synergies inherent in these technologies. This transdisciplinary approach foregrounds ethical, legal, and practical dimensions, bringing nuanced understanding to often polarized interactions among stakeholders, including designers, users, legal actors, and industry entities.

Consent Banner Design Critiques

The analysis reveals intricate manipulations—termed dark patterns—employed within consent banners aimed at steering user behavior subtly or coercively, often raising ethical and legal alarms. Among the illuminated manipulative tactics are:

1. Consent Walls: These mechanisms halt access to website content until users respond to consent requests. From a user perspective, this strategy can be obstructive, creating a forced action scenario where the primary goal of accessing content is hindered. Legally, this interface's intent needs careful evaluation for compliance, particularly concerning "freely given" consent criteria mandated by GDPR.
2. Tracking Walls: These interfaces deny site access unless consent is given, with no room for refusal, akin to a "take it or leave it" proposition. Such walls pose significant ethical and legal challenges, potentially breaching the principles that consent must be granular and revocable, making their legal standing contentious.
3. Reduced Service: Websites restricting functionality or content based on user consent choices exemplify a "reward and punishment" model, challenging the notion of freely given consent through potential coercion—highlighting a legal and ethical gray area concerning transparency and user autonomy.
4. Configuration Barriers: Highlighting interface interference and obstruction strategies, these barriers manipulate user choices via aesthetic tweaks, hierarchies, or hidden options. Such designs exploit cognitive biases, raising significant ethical concerns regarding user autonomy and transparency of choice.

Legal and Ethical Implications

The intersection of design choices with legal imperatives reveals substantial tensions, particularly in satisfying GDPR's requirements for valid consent—free, informed, specific, unambiguous, and accessible. While these manipulations strategically leverage design principles, they illuminate gaps in existing legal frameworks that do not fully accommodate the intricacies of user interface design, raising questions about regulatory efficiency against evolving technological practices.

The paper advocates for further empirical research and cross-disciplinary dialogue to delineate manipulations that contravene legal stipulations, and potentially establish standardized design criteria for consent interfaces that align with GDPR mandates.

Future Directions

Gray et al.'s discourse invites a broader transdisciplinary engagement, fostering collaboration across HCI, legal scholarship, and ethical frameworks to define responsible design practices and inform robust policymaking. Further exploration is warranted in unraveling intricate user interactions, developing methods to measure and mitigate manipulative designs, and educating practitioners and stakeholders on integrating ethical considerations into their workflow.

The paper contributes significantly to understanding the multidimensional challenges within designing consent mechanisms, calling for sustained discourse and research into the ethical and legal dimensions of user interface design in safeguarding digital rights and autonomy.