Name: Redesigning Protection for Consumer Autonomy
Author: Giorgia Guerra

Front matter

Giorgia Guerra

Redesigning Protection for Consumer Autonomy

The case-study of dark patterns in European private law

Index

Author’s acknowledgement Introduction

I. Reframing consumer autonomy into the digital world: current mindsets 1. Setting the scene 1.1 Consumer autonomy in private law: a diachronic perspective 1.2 Autonomy and the traditional information approach in a nutshell 1.3 The interconnection between autonomy and the information in European law 1.4 The dynamic concept of autonomy in the digital context... 1.5 ...with specific attention to data-driven technologies and (in future perspective) Metaverse 2. ‘Disruptive’ digital architectural design. New room for ‘legal protection by design’? 2.1 Different digital designs to nudge... 2.2 ... of to manipulate digital consumers 2.3 The phenomenon of dark patterns (see Chapter II section 2) 2.4 Manipulative design and unexplored pitfalls for the information approach 3. New trajectories to advance the legal research 3.1 The research overlapping area: blurring the line between legal policies 3.2 The effects of disruptive technologies on long-established legal taxonomies 3.3 Personalized advertising, and services... and ‘personalized law’

3.4 The drawbacks of personalization: algorithmic discrimination, failures, and meta-preferences impacts 4. Research inquiry and method

II. When autonomy struggles with dark patterns: promises and pitfalls of the current EU regulatory patchwork 1. Perspective and approach of the Chapter 2. Design patterns and the pervasive phenomenon of dark patterns 2.1 Dark patterns and consumer harms.

The threats to self-determination data and consumption choices 3. A preliminary ‘map’ of the European regulatory framework coping with dark patterns 3.1 A step back: the complex relationship between data protection law and consumer protection law 4. The perspective of data protection law 4.1 A global view 4.2 Recent EU decisions on the effective protection of authentic will: Planet49, Orange Romania, and Meta/Facebook platforms cases 4.3 Web-scraping personal data in online platforms: insights from recent American litigation 4.4 Regulation by design: the contribution of the GDPR 5. The perspective of consumer law 5.1 Digital Services Act and the Digital Markets Act: advantages and critics for the dark patterns ban 5.2 The key role of unfair commercial practices directive 5.3 Weakness in the current fairness test 6. The perspective of competition law 6.1 The idea of ‘competition by design’ 6.2 Anticompetitive dark patterns 7. Preliminary conclusions

III. Redesigning taxonomies and legal models of EU private law to protect the right of autonomy in the digital environment 1. Arising protection exigencies for autonomy: a review 2. New directions to coordinate a fragmented regulatory program 3. The disruption of traditional legal concepts 3.1 From vulnerabilities to digital vulnerability 3.2 From the ‘average consumer’ prototype to the digital vulnerable consumer

70 73

75 77

94 98 100

114 116 122

159 161 166 169

4. Towards the suitable legal model 4.1 The legal design 4.2 How to design fair algorithms? An open debate between lawyers and computer scientists 4.3 The contribution of comparative methodology to think interdisciplinary when setting a legal design

Conclusions

181 184

AUTHOR’S ACKNOWLEDGEMENT

My interest in consumer law, policy and behaviour when involved in technological change dates back to 2003, when I started my PhD. Over the years, I had numerous chances to analyse the multi-faceted issue in the privileged field of law and converging technologies through the lens of comparative methodology.

I have many debts of gratitude for this. The most significant is to Prof. Marco Torsello, to whom I am grateful for having enrolled me into the vibrant academic community of the University of Verona, and for offering me the opportunity to work with him.

This book also benefited from valued insights. For all the constructive comments on the first draft of the book, I am particularly thankful to the professors I mention as follows in alphabetic order: Mateusz Grochowski (Max Planck Institute in Hamburg); Erica Palmerini (University Sant'Anna of Pisa); Cristina Poncibò (University of Torino); Karin Sein (University of Tartu); Filippo Viglione (University of Padova)1. I also wish to sincerely thank the anonymous reviewers for their helpful suggestions, which, ultimately improved the quality of manuscript. Remaining errors are my own.

Moreover, two visiting research periods, at the Centre of European Private Law of the University of Munster (2022) and at the Hamburg Max Planck Institute for Comparative and International Private Law (2023) contributed to making my ideas on the topic clearer, and to enrich the final work. Academic networks for exchanging ideas and getting feedback were invaluable players for my research.

Lastly, special thanks go to Mrs Kathryn Thoirs for her proof-reading suppott.

To my beloved mom, always with me

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Redesigning Protection for Consumer Autonomy

About this book

Front matter

Index

The end

Redesigning Protection for Consumer Autonomy

About this book

Front matter

Index

The end

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