The EU regulatory patchwork for dark patterns: An illustration of an inframarginal revolution in European law?

Dark patterns are in the midst of a regulatory wave in the EU. Beyond existing regimes in the areas of consumer, data protection and competition law, many of the new Acts include a provision regarding dark patterns. The use of dark patterns is typically an attempt by businesses to increase their revenue at the expense of consumers who purchase products they may not need, spend more time or give up more personal data than they would otherwise do. Instead of focusing on the more normative issue of when dark patterns should be considered harmful, the chapter compares the different legal frameworks applicable to these practices and asks to what extent the increasingly fragmented EU regulatory landscape can offer effective overall protection against dark patterns. While useful complementarities may arise when parallel sets of rules target different concerns or protect different values, there are also risks of inconsistencies that may lead to either under- or overenforcement due to the fragmentation of the overall regulatory framework. The chapter submits that three needs result from the state of play and does suggestions to improve the enforcement against dark patterns based on the current EU regulatory framework.