Conversations on Legal Design (1/4): A multi-faceted discipline

Sebastian Greger

In the first of four “Conversations on Legal Design” seminar sessions, Dr. Arianna Rossi challenged participants to consider legal design from different perspectives: legal design is not just a problem-solving methodology, but also a framework for empirical research in legal and design challenges alike. Yet, its true potential may actually lie in envisioning alternative futures at large.

Between February and April 2021, the Université catholique de Louvain opened up selected guest lectures from their “European IT Law by Design” (EITLab) course to the interested public - namely the “Conversations on Legal Design” module, providing access to some leading innovators’ thoughts on the field of Legal Design.

“Conversations on Legal Design” was a seminar series by UCLouvain in spring 2021. These are my selective and opinionated seminar notes, not a comprehensive documentation.More on #legaldesign

This blog series is a collection of notes taken during and thoughts triggered by these seminar sessions, hosted and facilitated by Dr. Rossana Ducato.

The first session was an introductory presentation titled “What is legal design? A lightning tour of a multifaceted discipline”, in which Dr. Arianna Rossi of the Université du Luxembourg approached this question through practical applications and real-world cases to introduce three perspectives on framing legal design:

I. Legal design as an empirical method to challenge traditional legal assumptions

Do transparency and control automatically create trust? Highlighting how detailed transparency may instead just overwhelm the average person, how more choice may mean less autonomy rather than more (due to a lack in ability to manage complex options), and how human decision-making is not always rational but strongly influenced by other factors, Rossi stressed how transparency and control are not binary properties, but merely principles that may be implemented in many ways.

There’s quite some food for thought in this perspective. For example, if we assume that too much choice leads to less autonomy (Rossi quoting Krug’s “Don’t make me think” principle): where is the sweet spot between incapacitation through oversimplification and overburdening through excessive detail? Website privacy policies and cookie notices, the lens used in her interactive presentation, are indeed good examples of that balancing act — though often intentionally “badly” designed to obfuscate questionable data practices.

Or, to reframe the seminar exercise on cookie banners: what would it take to design a cookie notice that is fair, comprehensible, enjoyable and simple? My key takeaway from this point is that, while law professionals and institutions may well follow the widespread assumption that more is better — both in transparency and control — legal design may help finding the ideal solution space where user-centered reduction benefits the outcome without affecting an individual’s rights or agency.

II. Transparency and legal design as interdisciplinary collaboration

Next, Rossi shared her experiences from a project that aimed to improve the privacy policy document of the Privacy Icons Forum (PIF) — an initiative itself researching the value of icons in privacy information — by means of custom-designed icons.

The privacy policy of the Privacy Icons Forum website uses several design techniques to improve their comprehensibility.

While icons are often seen as a good solution to ease access to complex content (here: the privacy practices of a website), the feedback from the seminar class quickly highlighted their challenges as well: the icons did not seem to perform quite as expected. This stresses the point that adding icons alone — and these were designed with significant effort, not just picked from some random icon font — won’t make for a digestible document. The design method of prototyping, testing and iterating is key; this is where the interdisciplinary aspect comes into play, as these are particular skills of designers.

Ever since they even got explicitly mentioned in Art. 12(7) of the GDPR, I have been critical whether iconography for privacy notices really makes comprehension easier or whether they add even more abstraction to an already abstract issue? Arianna Rossi’s research gives some deep insight into these questions. There’s likely only one way to find out — by experimentation — hence the relevance of legal design as connecting disciplines.

The presentation also looked at some of the manipulative powers — and the resulting responsibility — of the designer, such as how social cues, pre-selected defaults or other nudging techniques may influence a user’s choices (the slides linked to the comprehensive paper “Nudges for Privacy and Security” by Acquisti et al.) whereafter Rossi presented some empirical findings from a study that established how people are often well aware of being manipulated but may not know how to deal with them:

[…] By surveying 406 individuals, we found that they are generally aware of the influence that manipulative designs can exert on their online behaviour. However, being aware does not equip users with the ability to oppose such influence. We further find that respondents, especially younger ones, often recognise the “darkness” of certain designs, but remain unsure of the actual harm they may suffer. Finally, we discuss a set of interventions […] in the light of our findings.

The “Intervention spaces for dark patterns” schematic from their paper is an illustrative example on how legal design, when understood as an empirical research approach, can aid in the investigation of issues with legal relevance and yield input for strategies, both in design and legal, to counteract challenges like, for example, the so-called “dark patterns” (I am with Jeremy Keith, promoting the term “deceptive patterns” instead): measures ranging from education and design to technololgy and regulation may contribute to a change in awareness for, improved detection of, resistance to, or elimination of “dark patterns”.

III. Legal design beyond the problem-solving approach

The third and final part of Rossi’s presentation looked into using the legal design approach beyond the question of problem-solving alone. Especially when applying methods of speculative design, legal design can be understood as a critique of how things are and an instrument for speculation about how things could be.

The fictional 2025 newsletter of digital rights NGO EDRI, EDRIgram 300, is just one of many examples for speculative design.

While obviously the most abstract perspective of the three presented (it surely requires a bit of cognitive transfer from Ai Hasegawa’s referenced project “I wanna deliver a shark” to legal design; the second reference to Netflix’s famous “Black mirror” dystopia being more tangible), this was the most refreshing view on legal design for me: I, too, had so far framed legal design primarily as a problem-solving approach, with the use as an empirical tool coming in close second. But indeed: the true potential of the designery method may lie in its potential to come up with entirely new approaches.

It was refreshing to see legal design discussed through the different roles it may take, and this session for sure highlighted just how much potential is hidden in combining the domains of legal and design.

 
Read on: In the second instalment of the seminar, Prof. Monica Palmirani talked about legal design as a bridge between legal language and visual representation.