Dark patterns have become a common feature of digital consumer interaction. While their manipulative nature leads to unfair commercial practices, the current applicable regulatory framework and a lack of case law pose challenges to enforcing fair commercial practices by online businesses. A recent court decision in Germany gives the first clarifications by giving an interpretation of the overlaps in scope of the Digital Services Act (DSA) and the Unfair Commercial Practices Directive (UCP Directive).
What Are Dark Patterns?
Although there is no universally accepted legal definition of dark patterns, in recent years, a common understanding has emerged that dark patterns are manipulative design features in digital interfaces that aim to steer users toward choices they likely would not have made under neutral conditions. These practices deliberately exploit cognitive biases, convenience, or inattentiveness by using tactics such as preselected options, countdown timers, hidden opt-outs, or visually emphasized buttons that highlight the option most favorable to the business. A 2022 behavioral study by the European Commission on unfair commercial practices in the digital environment illustrates their widespread use. Many digital platforms and online shops rely on such patterns to influence user decisions.
As regards the scope and reach of practices which could be qualified as dark patterns, the DSA, which entered into force in February 2024 and is applicable in all EU Member States, provides valuable guidance (Art 25 as well as in Recital 67).
Dark Patterns as Unfair Commercial Practices
Article 25 (1) DSA prohibits providers of online platforms from designing or operating their interfaces in a way that significantly manipulates or impairs users in making free and informed decisions. However, paragraph 2 stipulates that this rule applies only where no other union laws, particularly the GDPR or the UCP Directive, apply. In this respect, the DSA works as a residual provision: if a more specific legal instrument, such as the UCP Directive or the GDPR, applies, Article 25 DSA is generally not applicable.
The Bamberg Decision
Due to the fact that the DSA has only recently come into force, no supreme court case law has yet been established. However, in a judgment issued on February 5, 2024 (Case No. 3 UKI 11/24 e), the Higher Regional Court of Bamberg in Germany addressed the distinction between the scope of the DSA and the UCP Directive. The court concluded that even if Article 25 DSA is not applicable, violations of its underlying standards may still constitute a breach of the UCP Directive and thus amount to an unfair commercial practice under national law.
The case considered a process for booking tickets where users were repeatedly prompted, with visual emphasis, to purchase optional ticket insurance. A consumer protection organization claimed that this amounted to a prohibited dark pattern under Article 25 of the DSA. The court agreed that the design raised legal concerns but held that Article 25 DSA did not apply directly, as the situation fell primarily under the UCP Directive. However, the court stressed that the principles set out in Article 25 (1) and (3) of the DSA remain relevant and should be used to interpret the UCP Directive.
Notably, the court treated the examples listed in Article 25 (3) of the DSA – such as repeated prompts after a choice has already been made or the deliberate visual highlighting of paid options – as typical cases where user autonomy is undermined. These examples can be used to clarify when a business practice falls short of the professional diligence required by the UCP Directive.
Assessment and Outlook
The ruling by the Bamberg court provides an interpretation of the interaction between European instruments in the field of digital consumer protection. The DSA is not treated in isolation but serves both as a residual rule and as an interpretative tool for existing unfair competition law.
Since no Austrian case law on dark patterns currently exists, the German decision may provide valuable guidance. The legal instruments at the heart of the case, particularly the DSA and the UCP Directive, are harmonized across the European Union and must be interpreted consistently. Austrian courts will therefore need to align with these Union standards and may well refer to the reasoning of the Bamberg court when evaluating manipulative interface designs.
By Georg Kresbach, Partner, and Anna Scheithauer, Associate, Wolf Theiss
This article was originally published in Issue 12.7 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
