Working papers

No harm no foul: how harms caused by dark patterns are conceptualised and tackled under EU data protection, consumer and competition laws (June 26, 2024)

By Cristiana Santos and Viktorija Morozovaite (Utrecht University School of Law), Silvia De Conca (VU University Amsterdam)

Although several Human-Computer Interaction (HCI) studies have empirically investigated the harms caused by dark patterns, and policymakers and regulators regard these harms as significant, they have yet to be examined from a legal perspective. This paper identifies the harms deriving from dark patterns (DP), dissecting the role that harms play in the emerging European 'dark patterns acquis'. In particular, this paper systematises the body of knowledge of dark patterns' harms from HCI scholarship and proposes a taxonomy of dark pattern harms. It reconciles the debate concerning dark patterns' harms in HCI with the legal requirements for assessing harms from the perspectives of European data protection, consumer law and competition law.

Publication details at: No harm no foul: how harms caused by dark patterns are conceptualised and tackled under EU data protection, consumer and competition laws

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Meta's Pay-or-Okay Model: An Analysis Under EU Data Protection, Consumer, and Competition Law (April 9, 2024)

by Alessia Sophia D'Amico, Dionysios Pelekis, Cristiana Santos, Bram Duivenvoorde (Utrecht University School of Law)

Meta introduced its ‘pay-or-okay’ model to respond to heightened requirements as to the way it collects users’ personal data for targeted advertisement. This model entails giving users two options: paying for a tracking-free service or giving consent to personal data processing including targeted ads. While this resulted from the Meta ruling, in which the ECJ set out the requirements for freely given consent, this solution has caused a new wave of criticism, questioning whether it complies with EU law. More specifically, it raises potential concerns under data protection, consumer law, competition law and the Digital Markets Act. This paper analyses what issues this conduct creates under these areas of EU law and assesses the overall legality of the pay-or-okay model.

Publication details at: Meta's Pay-or-Okay Model: An Analysis Under EU Data Protection, Consumer, and Competition Law

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The Interaction between Free Movement Law and Fundamental Rights in the (Digital) Internal Market (September 5, 2023)

by Ulla Neergaard (University of Copenhagen, Faculty of Law) and Sybe A. de Vries (Utrecht University School of Law)

This paper analyses the interaction between free movement law and fundamental rights (as expressed in the Charter of Fundamental Rights of the European Union), by looking specifically into Case C-78/18 about the Hungarian NGO Transparency Law. The case is of interest because the Court of Justice of the European Union had to clarify if the Charter should apply to national laws that are not directly implementing EU Law, but are restricting the EU’s fundamental freedoms, and because it constitutes a very important step in upholding the rule of law and democracy in the EU’s Member States.

Publication details at: The Interaction between Free Movement Law and Fundamental Rights in the (Digital) Internal Market by Ulla Neergaard, Sybe A. de Vries

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ICT Standards Bodies And International Trade: What Role For The WTO? 

by Olia Kanevskaia (Utrecht University School of Law Research Paper Series, Reprinted from the Journal of World Trade, Volume 56 issue 3 – May 2022)

Standardization of information and communication technologies (ICT) has become essential for the global economic activity. Because ICT standards are generally produced by the private sector, their trade-restrictive effects have so far largely managed to escape the purview of the WTO. However, due to their growing normative consequences, the status quo of ICT standards and ICT standards bodies in multilateral trade cannot be maintained any longer. This Article argues that the WTO has powerful tools to address trade-restrictive effects of ICT standards.

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01/21: Philip Bennett and Hans van Meerten ‘Bauer and beyond: The changing interpretation of Article 8 of Directive 2008/94/EC (Protection of employees’ pension rights on employer insolvency) and its impact on Member State pension protection arrangements on employer insolvency. Read and or download this working paper (pdf)