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Dark patterns steer users into taking decisions they would not have made otherwise. They are widespread in ‘cookie banners’ where they nudge or otherwise lead users into ‘consen-ting’ to intensive and controversial processing of personal data, such as online tracking and behavioural targeting. The prevalence of dark patterns in the privacy context is not only due to an enforcement deficit. It is also due to a lack of legal provisions that effectively implement the principles of privacy by design and by default. The legislator should address privacy dark patterns by ensuring meaningful choice of data subjects.
Algorithms have a profound and growing influence on our lives, but partially remain a black box to us. Keeping the risks that arise from rule-based and learning systems in check is a challenging task for both: society and the legal system. The essay undertakes the challenge to examine existing and adaptable legal solutions and to complement them with further proposals. It designs a regulatory model in four steps along the time axis: preventive regulation instruments, accompanying risk management, ex post facto protection and the vision of an algorithmic responsibility code. Together, they form a legislative blueprint to further regulate applications of artificial intelligence.
E-Participation in Germany
(2015)