Opinion piece on dark patterns in 'Het Financieele Dagblad'
Interfyde® • August 31, 2020
Dark patterns
More and more websites have employed new tricks to get users to consent to the placement of tracking cookies on their devices. These tricks are often called dark patterns.
An common example of such a trick is an easy one-click button for the acceptance of cookies and a complex settings page for the refusal thereof. Another trick that is often used is a large button for the acceptance of tracking cookies, but a small button for the refusal of cookies. A dark pattern that is also often employed is the use of the color green, which is associated with safety, for the acceptance of cookies. And of course the color red, which is associated with danger, for the refusal of these cookies.
Opinion piece in Het Financieele Dagblad
Our consultant David
wrote an opinion piece on this subject, which has been published in the Dutch financial newspaper 'Het Financieele Dagblad' on August 20th. You can read it here (in Dutch): Privacywaakhond moet dark patterns aanpakken
Can dark patterns be used lawfully?
Users need to consent to the placement of tracking cookies on their devices. According to the General Data Protection Regulation (GDPR), consent needs to be freely given, specific, informed and unambiguous. Freely given consent implies that a user has an actual choice, which the user does not have if he or she has no choice but to accept tracking cookies in order to access a website.
The European Data Protection Board has expressed in May of this year that making consent a condition for the access to a website, often called cookie walls, cannot amount to freely given consent. The Dutch Data Protection Authority had already expressed the same opinion last year.
Dark patterns will probably not amount to freely given consent in most cases. You need to provide users with a way of withdrawing consent that is just as easy as providing consent. It is only logical that the same applies to the refusal of consent; refusal should be just as easy as acceptance. If you provide the user with an almost hidden option for the refusal of cookies, does that user have an actual choice if he or she does not know that cookies can be refused? And do you provide the user with an actual choice if the acceptance of cookies can be done in one click, whilst the refusal of these cookies can only be done by navigating through a complex settings page?
Obtaining proof of consent can be difficult if you are using dark patterns
If you employ dark patterns for the placement of tracking cookies, you will run into another problem. Consent needs to be unambiguous, which means that it needs to be clear that a user has consented. You will also need to proof that users have consented to the placement of tracking cookies. How are you going to proof that users have freely consented to the placement of tracking cookies, if they are misled into accepting them?
If you want more information on how to use tracking cookies on your website in a GDPR-compliant manner, be sure to contact us at info@interfyde.com.
