Legal Approaches to Addressing Dark Patterns
摘要
Dark patterns, characterized by their manipulative nature, have garnered increasing attention in the fields of consumer and privacy protection law. The infringement of autonomy itself constitutes harm, and maintaining fairness is essential for mitigating such harm. The prevalence of dark patterns is evident from investigations conducted in various countries, underscoring the need for legal regulations. Hence, this article examines dark patterns, focusing on their infringement of autonomy, and reviews regulatory developments in the EU, the U.S., and Japan. Regulatory approaches include (1) directly prohibiting dark patterns; (2) applying general provisions that mandate fair processing of personal data or fair trade; (3) classifying dark patterns as unfair commercial practices and subjecting them to legal enforcement; (4) invalidating consent obtained through the use of dark patterns; (5) specifying individual types of behavior and imposing restrictions on them; and (6) requiring safeguards to be embedded by design and by default. While regulatory methods vary across countries and regions, establishing rules that mandate fairness in business practices and accumulating specific enforcement cases can serve as deterrents, provided that the enforcement agencies function effectively. Furthermore, complementary measures, such as targeted regulations on particularly harmful practices and enhanced penalties for overlapping violations, should be considered. In particular, utilizing technological tools and encouraging proactive efforts by businesses to address dark patterns are crucial measures.