On June 18, 2024, the Federal Council published a report on dark patterns, focusing on identifying a possible need to adapt the legislation in force.

What was analyzed in the report?

The report identified the main characteristics of dark patterns:

• digital design;
• manipulation of the consumer or user through the use of behavioral psychology; and
• influence aiming an advantage to the person proposing the interface.

The report also highlighted the impact of dark patterns on consumers, specifically on their free choice and autonomy. Possible consequences to consumers include losing money, problematic purchasing behavior, and addiction to video and gambling games.

What current legislation is applicable to dark patterns?

The report noted that under the Federal Law Against Unfair Competition (UWG) any behavior or commercial practice that is deceptive or which in any other way contravenes the rules of good faith and which influences relations between competitors or between suppliers and customers is unfair and illicit. According to the report, the UWG can be interpreted to include dark patterns in its scope of application.

Additionally, the report concluded that the Federal Act on Data Protection (FADP) can also be applied to the use of dark patterns. In particular, employing dark patterns may violate the principles of transparency, good faith, purpose limitation, and transparency.

Finally, the report also noted that dark patterns are subject to contract requirements under the Code of Obligations.

Conclusion

The report did not find any need for action at this time, as the current legal framework covers many rigged interfaces. However, the report noted that it is appropriate to continue to closely monitor developments in this area, including at the international level.

You can read the report in French here and in German here.