Dark Patterns Are Only the Surface

Opening slide for the EESC Digital Fairness Act expert hearing

Central proposition

The screen is the delivery surface. The commercial practice is the regulatory object.

The contribution moves from visible interface features to the consumer journey, optimisation objective, experimental variants, allocation rules and adaptive logic that determine what the consumer receives.

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Legal architecture

Inspect broadly. Prohibit precisely.

Architecture widens the evidential field; actual or likely material distortion continues to control general liability.

01

Object

Inspect the commercial practice across interface, journey, objective and allocation.

02

Gate

Use narrow red lines where justified; otherwise retain the UCPD hierarchy and material distortion.

03

Benchmark

Follow the targeted group and treat vulnerability as relational rather than permanent incapacity.

04

Operation

Open evidence at a disciplined trigger, prove infringement and match the remedy to the mechanism.

What the consumer cannot see

A cancellation journey may look like one route to a consumer but represent one allocation from a portfolio of tested variants to the trader. A screenshot captures wording and friction. It cannot show why the route changed, which objective the system rewarded or whether the trader counted abandonment as success.

The six evidential questions

The presentation asks what feature appeared; what sequence surrounded it; which outcome the trader rewarded; what data or inference changed the route; what happened to comprehension, choice or rights; and which context shaped the stakes and vulnerability. These questions form an evidential grammar, not six cumulative elements of a new offence.

The legal toolkit

Narrow prohibitions, rebuttable presumptions, evidence and governance duties, and the existing general unfairness gate perform different legal jobs. A feature blacklist cannot replace that architecture.

Remedies with a causal spine

The sequence moves from correcting the consumer outcome to removing a harmful objective, redesigning a journey and, only where persistence is proved, ordering structural change.