Deceptive patterns
Often referred to as "dark patterns", deceptive patterns are manipulative design solutions that aim to nudge users towards actions that are against their intention and often their personal benefit. Commonly dismissed as unethical among responsible designers, they have a legal relevance as well.
About the name
There is a good reason to not call them "dark" to promote breaking the connotation of dark/black with negative:
Deceptive dark patterns
The phrase “dark pattern” is …problematic. We really don’t need to be associating darkness with negativity any more than we already do in our language and culture.
Why it's time to update our language about bad design patterns
As much as I am fascinated by the subject, and passionate about promoting that it is an abuse of designers' power of influencing people's behaviour, I deeply dislike the term "dark patterns". Enough so, to dedicate an entire page in my resources on the topic.
What I really like about this long-form analysis by Amy Hupe is that it highlights how it is not up to somebody not affected by hurtful language to judge whether it is appropriate or not:
The fact that Black folks have told us that our language around bad patterns is harmful is enough of a reason to change it.
And:
If someone from a marginalised group tells you that a term you’re using is racist, misogynistic, ableist, transphobic, homophobic, or causes any other type of harm to them: trust them.
And with "dark patterns" it's really not that difficult. Terms like "deceptive patterns" or "intentionally misleading patterns" are elegant alternatives, and a lot more descriptive as well.
This resource, referenced in the article, is a really thorough resource on the topic of racist language:
Abolish racist language
(for more on the general topic of avoiding racist bias in language use, Abolish racist language is a good resource.)
…but even from a most practical perspective this not-self-explanatory term is not very comprehensible for those outside a certain bubble:
https://mobile.twitter.com/quinnkeast/status/1355089301487411201
“Dark patterns“ is a kind of lofty term that isn’t all that clear for those outside the tech bubble. We should call them “manipulative patterns“ to better describe the purposeful *intent* behind them in a way anyone can understand.
— Quinn Keast (@quinnkeast) January 29, 2021
I have chosen to use the term "deceptive patterns" wherever possible and only use "dark patterns" when quoting the work of others.
Good explainers to start from
“I, Obscura,” a dark pattern zine launched from Stanford and UCLA
Scholars at Stanford and UCLA assembled this zine (on Issuu.com or as a 45MB PDF) on deceptive patterns, primarily to make them more tangible to non-techy people.
’I, Obscura’ hopes to illuminate dark design patterns by telling stories. A compilation of case studies, this zine offers readers a set of dark pattern examples, along with possible design and policy solutions. These examples assist with demystifying deceptive design of the possible harms to individuals, and to prompt policymakers to action
The nine case studies, along with the accompanying explanations and hints also make this a good device for educational contexts with design professionals.
More in-depth analysis
Design
The dark side of UX Design
With its byline "Practitioner-identified examples of stakeholder values superseding user values", this practice-based taxonomy of deceptive patterns in design is built from a collection of real-world examples with the aim to raise awareness.
Working with both practitioners and end-users, we are investigating how an increased awareness of dark patterns in UX might lead to a more ethically- and socially-responsible UX practice. Browse through our corpus of examples of practitioner-identified dark patterns, or find out how you can get involved in our research.
The resource currently features examples in five categories:
Nagging Redirection of expected functionality that persists beyond one or more interactions.Obstruction Making a process more difficult than it needs to be, with the intent of dissuading certain action(s).Sneaking Attempting to hide, disguise, or delay the divulging of information that is relevant to the user.Interface Interference Manipulation of the user interface that privileges certain actions over others.Forced Action Requiring the user to perform a certain action to access (or continue to access) certain functionality.
The full corpus of indexed examples is available as a list.
Legal definitions
At what point does persuasion turn into deception? In these guidelines, the answer to that question is the main focus. Following a consultation period, the guidelines have now been finalized. With these guidelines, ACM has fleshed out, in concrete terms, the standards for online deception. This will also be the standards that ACM will use in its oversight from now on.
Academic research
What Makes a Dark Pattern... Dark? Design Attributes, Normative Considerations, and Measurement Methods
Dark Patterns after the GDPR: Scraping Consent Pop-ups and Demonstrating their Influence
From unethical to illegal
With an increasing volume of GDPR-related court rulings, there is also a growing body of case law stating how deceptive patterns violate the law:
The end of dark patterns in “cookie walls”: German court bans deceptive designs | Spirit Legal - JDSupra
At the same time, there is a lack of specific statements in the applicable laws. While deceptive patterns obviously violate the spirit and the foundations of laws, they are rarely explicitly mentioned as something outlawed:
Dark Patterns in Personal Data Collection: Definition, Taxonomy and Lawfulness
In "Dark Patterns in Personal Data Collection: Definition, Taxonomy and Lawfulness" Luiza Jarovsky dissects deceptive design patterns from a legal perspective, pointing to the fact that current privacy legislation does not properly address these intentionally misleading patterns that aim to trick users into doing things they don't really want (she specifically defines them as nudges that are both "manipulative and malicious", which is a very practical definition of the so-called "dark patterns").
The centerpiece of the paper, and – in addition to a thorough walk-through of cognitive biases exploited in the privacy context in chapter IV – most interesting for evaluation purposes by the design practitioner, Jarovsky establishes a taxonomy in chapter V:
A) Pressure […] pressuring the data subject to share more (or more in-depth) than intended personal data to continue using a product or service.[…]B) Hinder […] delaying, hiding, or making it difficult for the data subject to adopt privacy protective actions.[…]C) Mislead […] using language, forms, and interface elements to mislead the data subject whilst taking privacy related actions.[…]D) Misrepresent […] misrepresenting facts to induce data subjects to share more or (more in-depth) personal data than intended.
The intention behind this categorization, a distillation from a broad body of pre-existing work in the field, becomes visible as the paper proceeds to discuss how deceptive patterns are incompatible with the GDPR's requirements for consent and puts them into relation with various requirements that implicitly – though, the point of the paper, not explicitly – outlaw such practices: lawfulness of processing, privacy by design, and the fairness principle. The latter is highlighted in the summary in particular:
In a nutshell, the GDPR is silent about the exploitation of cognitive biases, manipulative interface designs and negative interferences in the decision-making process. […] To curb DP, fairness is a central concept, as it reflects the need to balance the asymmetries between controllers and data subjects. The GDPR refers to fairness multiple times, yet, has no definition thereof, either specificity or enforceability for the concept. The way to advance data protection law is by unpacking the idea of fairness, so that it can encompass the right of fair decision making and fair interface design in privacy to data subjects.
I could not agree more! The way legal departments and interface designers have since 2018 channeled their creative capacity into inventing ever more means of deception, while – at least until a court has ruled otherwise – staying "compliant" with the GDPR is mind-boggling. A more explicit definition of what is an unfair deception, in the way Jarovsky suggests (and the draft for a Deceptive Experiences to Online Users Reduction DETOUR Act in the US, as quoted in the article, seems like a good template to start with), could go a long way in enforcing fairness rather than encouraging bending the law until it breaks.
On a side note: personally (though, as a non-lawyer, I may miss some of the semantic details of this paper's argumentative structure) I am not fully convinced by the author's argumentation that the "consent" context is the only one where deceptive patterns affect the lawfulness of data processing:
Among them, consent is the only option that could be affected by DP, as it comprises situations in which the decision-making capacity of the data subject serves as the legitimising factor to data collection
I concur that consent flows are by far the most prominent breeding ground for "manipulative and malicious" nudges, but I just as commonly find pressuring, hindering, misleading and misrepresenting design patterns when it comes to transparency: in particular regarding the legal construct of "legitimate interest" – the GDPR demands a high, as I have analyzed before almost unachievable-in-practice, degree of transparency in data processing statements and these, too, are commonly ridden by deception and obfuscation, by lawyers and designers alike.
The practice-based taxonomy by UXP2 complements this legal taxonomy neatly, and illustrated with real-world examples:
