Browsing by study line "Offentlig europarätt"

This thesis addresses dark patterns, unfair commercial practices falling under the scope of EU consumer law. Dark patterns are technical measures employed by traders in their online surfaces. Dark patterns are deemed particularly harmful due to their distinct manipulative features: They largely rely on the exploitation of consumers’ cognitive biases, through which they may deceive consumers into taking economic decisions they would otherwise not have taken. Due to their prevalence and significant harm, this master’s thesis scrutinizes and assesses the effectiveness of their current legal framework. Hence, this thesis assesses the Unfair Commercial Practices Directive (UCPD) which is applied to dark patterns. This thesis assesses the effectiveness from the perspective if the current level of protection provided through the average consumer benchmark of the Directive, in whose light the provisions of the Directive are applied, responds to the necessary level of protection that is appropriate in the light of the cognitive biases exploited by dark patterns. Hence, this thesis underlies the premise that effective protection must protect the scientifically evidenced behavior of an average consumer. The first research question of this thesis is, if the protection provided by the UCPD is effective. This question is addressed by delving into the cognitive biases exploited by dark patterns, which indicate the protection needed by consumers, and on the other hand, by evaluating the current framework and the jurisprudence concerning the average consumer benchmark. The second research question is, how the UCPD could provide effective protection against dark patterns if it presently does not do so. This research question is addressed by providing legislative proposals based on the protection needs of consumers shown in the thesis and especially considering the nature of the provisions of the UCPD. The thesis shows that the protection, which the UCPD provides to rational average consumers, does not provide effective protection against dark patterns, as they exploit consumers in a manner which does not render consumers to fit the standard of the rational average consumer, which the application of the Directive on commercial practices usually requires. Hence, the thesis provides two distinct proposals in order to improve the protection provided by the UCPD against dark patterns: First, it suggests the amendment of the so-called ‘Blacklist’ included in Annex 1 of the Directive, and second, the revision of the average consumer benchmark of the Directive to better respond to actual consumer behavior indicated by the biases discussed in this thesis. The thesis concludes in preferring the latter option due to its, predictably, more comprehensive and sustainable effects on the protection against dark patterns.