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Solving the problem of dark patterns should not create problems for SMEs

Dark patterns, practices designed to manipulate web users, can be problematic. This is why the EU regulator and particular MEPs have been vocal on restricting or banning these practices as is the case within the Digital Services Act (DSA) negotiations. The European Data Protection Board also recently released guidelines on dark patterns in an attempt to give platforms and users some clarity.

The Coalition for Digital Ads (CDA) is supportive of limiting practices which do not respect GDPR and which hinder the ability of users to effectively protect personal data and make conscious choices. However, caution must be adopted when defining what “dark patterns” are as the definition may unintentionally sweep up non-harmful practices. This could have a catastrophic impact on SMEs throughout Europe.

Targeted advertising is a key example here. Almost all small businesses in Europe depend on digital channels to find new audiences, market to them and convert them to customers. European economic integration is dependent on the ability of SMEs to expand, grow and ultimately reach consumers throughout Europe. However, unlike large corporations, SMEs do not have the resources for large-scale marketing campaigns reliant on organic tools. A blanket ban on dark patterns could unintentionally limit targeted advertising and other legitimate and useful practices through the backdoor.

Legislative and non-legislative efforts should therefore focus on bringing clarity on dark patterns. The EDPS guidelines are helpful here, however they still do not provide a precise definition nor an exhaustive list.

The DSA, designed to be Europe’s internet rulebook, is expected to address dark patterns or even go so far as to ban them. Any additional guidelines or regulations will have to be aligned with the DSA wording for clarity. It will therefore be important to ensure the definition is precise in its description of dark patterns.

Ideally, this should specify that the term refers to manipulative design choices that materially distort the behaviour of an average user. However this should not lead to an outright ban on adspractices, a harmless practice employed by many SMEs throughout Europe to connect with consumers and grow.

This is why we are taking part in the consultation opened by the EDPB on their guidelines on dark patterns. We encourage the EDPB to ensure that there are clearer, explicit and exhaustive guidelines which do not put at risk incompatibilities with incoming regulations such as the DSA. The relationship between these efforts should be clearly outlined so SMEs are given predictability on the legitimate tools that are at their disposal for growth.