From dark patterns to hyper-engaging dark patterns: for a modern application of the prohibition under Article 25 DSA

Article 25 of the Digital Services Act (DSA) proscribes the use and dissemination of so-called dark patterns on online platforms. The term “dark patterns” refers to computer tools designed to influence users’ behaviour during their web experience. The prevailing interpretation in scholarship concerning this prohibition, also confirmed by the practice of the EU Commission, appears, however, to be unreasonably restrictive, limiting its validity exclusively to the category of dark patterns of a graphic nature. This approach carries the risk of creating a protection gap concerning new generations of dark patterns, particularly Hyper-Engaging Dark Patterns (HEDPs), which are designed not only to maximise interaction with users but also to compel them to perform unintended actions (e.g. making unplanned purchases). In the light of this scenario, this paper proposes moving away from the prevailing majority approach, which, among other issues, creates a marked differentiation in protections between users of Very Large Online Platforms (VLOPs) and those of non-VLOPs.