Dark Patterns as Disloyal Design

Authors

Johanna Gunawan
Woodrow Hartzog, Boston University School of LawFollow
Neil Richards
David Choffnes
Christo Wilson

Document Type

Article

Publication Date

Summer 2025

ISSN

0019-6665

Publisher

Indiana University School of Law - Bloomington

Language

en-US

Abstract

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack a clear value anchor for cases to build upon. Second, legal definitions of dark patterns overfocus on individuals and atomistic choices, ignoring de minimis aggregate harms and the societal implications of manipulation at scale. Finally, the law has struggled to articulate workable legal thresholds for wrongful dark patterns. To better regulate the designs called dark patterns, lawmakers need a better conceptual framing that bridges the gap between design theory and the law’s need for clarity, flexibility, and compatibility with existing frameworks.

We argue that wrongful self-dealing is at the heart of what most consider to be “dark” about certain design patterns. Taking advantage of design affordances to the detriment of a vulnerable party is disloyal. To that end, we propose disloyal design as a regulatory framing for dark patterns. In drawing from established frameworks that prohibit wrongful self-dealing, we hope to provide more clarity and consistency for regulators, industry, and users. Disloyal design will fit better into legal frameworks and better rally public support for ensuring that the most popular tools in society are built to prioritize human values.

Recommended Citation

Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes & Christo Wilson, Dark Patterns as Disloyal Design , 100 Indiana Law Journal 1389 (2025).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4107