Humanity really has enough problems at the moment. One of the reasons for this is that we can’t keep up with the flood of information that constantly overwhelms us and our brain breaks it down to a greatly reduced level of complexity. Thinking is difficult and exhausting. We have only been able to do this for a very short time (in terms of evolutionary history). If we had to think carefully about every decision we made one day, we would hardly get out of bed. As a result, we have developed behaviors and strategies to pay attention to certain signals and ignore others, often favoring short-term small gains and disregarding or downplaying long-term effects. prejudice in the broadest sense. In phases of inattention, each of us becomes an easily manipulated victim and then agrees to things or makes commitments that, on closer reflection, would have been quickly rejected. Good salespeople, marketing geniuses, and other skilled magicians often instinctively know which “buttons” to press on customers to trigger the desired decision.
In day-to-day life, these are the moments when, later, “That wasn’t particularly clever” shoots through your head or you feel like you’ve been ripped off.
When buying products or services in such a case – apart from blatant examples – you will have rather little (socially acceptable) chances of revising the decision again. Not every transaction has to have winners on both sides and it is not always fair. I’ll be more careful next time! Naturally.
However, when it comes to data protection and the giving of consent, things are exceptionally different. Here the legislator requires that the consent was given “voluntarily”. Film connoisseurs may be reminded of the scene in The Godfather where an offer that cannot be refused was discussed. It doesn’t always have to be a matter of life and death, sometimes a gentle “nudge” is enough to influence people’s behavior. “Anschubsen” might sound a bit childish, but if you take a closer look at the topic and use cool English terms for it (“nudging”), the Alfred Nobel Memorial Prize for Economics is also within reach . These can be seemingly harmless things like the use of colors or typography. That’s why we prefer to click green buttons over red ones. We also tend to believe in beautiful people rather than the average looking and many people automatically associate the sight of someone in a suit and tie with a sense of competence and power . Yes, we really are that simple.
The strategies mentioned above are examples of “dark patterns” in data protection. No, this is not Sauron’s new fashion label , but describes somewhat dodgy methods of gently persuading users to give their consent. The question then is whether one can still speak of voluntariness. The European Data Protection Board (EDPB), i.e. the superordinate body of the national supervisory authorities , denies this in its guidelines .
This means that the giving of consent, and thus also the well-known “cookie banners” on most websites, must be fair and transparent. Consent that was not given voluntarily and in a well-informed manner is not “second-class consent”, but simply invalid. However, if the consent is invalid and would be provided as the legal basis for a specific processing, then the entire processing becomes unlawful.
Regulators have broken down the various tricks used on websites to “snare” consent into separate categories. It makes sense to familiarize yourself with these categories and to check whether your website’s cookie management (or consent-gathering altogether) actually does without all these tricks and offers users a free choice. In the next part of this series of articles, we will look at the different categories of “dark patterns” and illuminate them with examples.