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Dark Patterns in Consent Management

Sarah Magdalena Huber 6/5/2023

Why data is more distorted by dark patterns in consent management and which tools you can use to conduct independent customer journey analyses

Table of contents

What do Dark Patterns mean in Consent Management?
Why are data more distorted by Dark Patterns?
With these solutions you make yourself independent from Dark Patterns and Consents
Conclusion: With etracker you say goodbye to misleading Dark Patterns forever

Misleading designs, deceptive language and hidden options - all of this is part of Dark Patterns. But no more! With the right software solution, you can work independently of Dark Patterns without having to give up on new leads or conversions.

In this article, we explain what Dark Patterns actually are, what disadvantages they have, and which tools you can use to acquire new customers independent of Dark Patterns.

In contrast to positive nudging, which is allowed or even desired under certain circumstances, Dark Patterns put you on the wrong track. Consent nudging includes subtle influence techniques that gently encourage users to agree to the processing of their personal data. Dark Patterns go one step further: They deliberately manipulate website visitors. Especially with cookie banners and pop-ups, the manipulative design techniques of Dark Patterns are used over and over again. But what exactly are Dark Patterns and what do they have to do with Consent Management?

Dark Patterns: Definition

A Dark Pattern - in English Dark Pattern - is a design that is intended to lead users to a specific action, even if this action is not in their best interest. These deceptive designs are primarily used on websites and in apps. The design of Dark Patterns is based on findings from neuro research. The goal is to benefit from the weaknesses of human decision-making and encourage users to act against their interests. Websites and apps that work with Dark Patterns (e.g., in the cookie banner) try to fool our brains.

Image: Examples of Dark Patterns

The European General Data Protection Regulation (GDPR) aims at voluntary consent to data processing. Dark Patterns manipulate users to obtain this consent. They primarily work with the following means:

Pressure: Users are repeatedly encouraged to take action, thus putting them under pressure.

Image: Dark Patterns Pressure Means

Operational Compulsion: The prerequisite for a certain action is another action. This means that users are forced to do A in order to be able to carry out B.

Image: Dark Patterns - Operational Compulsion

Obstacles: In this case, certain actions are to be avoided with Dark Patterns. For this purpose, obstacles of all kinds are used.

Image: Dark Patterns - Obstacles

Cheating: By means of cheating, users are slipped additional items or services. If these remain unnoticed, they are simply ordered along with them.

Image: Dark Patterns - Cheating

Misdirection: In the case of misdirection, graphic design is in the foreground. Design Patterns are misused to distract from information or lead users on certain paths.

Image: Dark Patterns - Misdirection

Consent Management: Definition

Consent Management involves the management of consents - in English Consents - for the collection and processing of personal data. It refers to the requirements of data protection laws such as the GDPR of the European Union. Before user data can be collected via website scripts, the person concerned must clearly agree to the data protection consent. It is important that users voluntarily consent to the processing of their data without being influenced by Dark Patterns.

Consent Management precisely regulates how consent can be obtained, documented, managed and revoked. Transparency, Information and Freedom of decision are at the top of the list. Typical examples of the responsibility of Consent Management are the design of cookie banners and pop-ups and the provision of choice options for users.

Why are data more distorted by Dark Patterns?

Through the use of Dark Patterns, companies can deliberately reduce the transparency of their data protection practices. Using deceptive language, hidden options or confusing designs, they manage to get consumers to reveal much more about themselves than they might like. According to a 2022 EU study conducted, about 97% of the most popular websites use Dark Patterns. And the result? Consent Bias and distorted data!

Consent Bias refers to a systematic source of error - such as a distortion - in the data resulting from lack of or manipulative consent procedures. The decisions of users are distorted and their Freedom of decision restricted. Thus, the data that is so diligently collected are not authentic data that is representative of the target group or the success of the website. Dark Patterns initially lead to more consents, but the data is falsified and useless.

With these solutions you make yourself independent from Dark Patterns and Consents

Those who do not want to deal extensively with the GDPR or the Telecommunication Media Data Protection Act (TTDSG) during website creation and management should opt for independent tracking technologies. These enable you to perform consent-free web and customer journey analyses in accordance with the GDPR and the TTDSG - without distorted data.

What is the legal situation with regard to the position of supervisory authorities, warnings, court rulings?

Web Analytics services according to the Orientation aid of the German supervisory authorities for providers of telemedia must meet certain requirements according to the GDPR and TTDSG:

No use of analytical cookies
Ensuring data protection-friendly processing (in the predominantly legitimate interest of website operators)
Ensuring data security European contract processors within the EU

OMR_Dark Patterns_rechtliche Situation.png

Image: Dark Patterns - Legal Situation

If the digital analytics services do not meet these requirements, warnings and penalties may be imposed. For example, the regional court in Rostock ruled in a Decision of 15.09.2020, Az. 3 O 762/19 (not legally binding) that the misleading design of the cookie banner and the lack of information about further data processing of a lawyer's search service was not in compliance with the law.

Leading providers like etracker Analytics include solutions for measuring the use of website and app offers - GDPR and TTDSG compliant. The use of the etracker analytics software is based on Art. 6 Paragraph 1 lit. f) GDPR. The website visitors are recognized exclusively for their browser and header information. The end device transfers the data of the users automatically or due to the browser settings. A separate consent of the users is therefore not necessary.

Why should I opt for etracker Analytics?

With the etracker solution, you capture all visits and conversions without manipulating the users. The EU provider etracker Analytics operates consent-free, cookie-less and legally compliant. The Software-as-a-Service solution helps you to maximize your data treasure easily and in compliance with data protection and supports you in marketing measures for customer acquisition. In addition, you benefit from etracker Analytics with the following advantages:

Independent of Cookie Consents or Ad-Blocking: With etracker Analytics you track your users' data consent-free per the TTDSG and GDPR. If necessary, tracking is done via your own subdomain.
Everything in view: With the etracker software you keep track of all website visits. You know exactly who is visiting your website, where the users come from and which areas of your site are particularly popular. The most important information can be found on the interactive dashboard.
Clear data visualization: All reports are designed and presented in such a way that you can recognize the most interesting developments and potential for improvement at first glance.
Easy integration and quick set-up: etracker Analytics is quickly and easily connected to your website in three steps: Download, install, set up and off you go thanks to the practical plug-in! Anyone with questions will find the answers quickly and easily in the etracker Academy.
Low rejection rate (Opt-out): With compliant consent design, the data processing requiring consent experiences a rejection rate of about 80 %. etracker Analytics however, records a rejection rate through opt-out of less than 1 %.

Image: etracker rejection rate in comparison

Users especially choose because of the powerful audience tracking technology, the many innovations, the personal support and the good value for money for the use of etracker. But not only web and app analytics are among the specializations of the Hamburg etracker GmbH. They are also experts in the following areas:

Data-driven marketing
Conversion optimization
Web and Wallet Push Marketing

They also stand out for the following qualities:

Image: etracker - Benefits

Alternatives to etracker Analytics

On OMR Reviews our users have tested and evaluated the best Web Analytics tools for you. In addition to our users also recommend the following softwares:

Conclusion: With etracker you say goodbye to misleading Dark Patterns forever

Acquiring new customers can sometimes become a Herculean task. All the more important is the tracking of website visitors and conversions through web or digital analytics. Dark Patterns tempt many website operators into manipulative consent design. Users are forced to take actions and ultimately consent to the processing of personal data by incomprehensible, obstructive, and pressure-producing means. Apart from the fact that this distorts the data and makes it unusable, Dark Patterns are illegal. With suitable software solutions like etracker Analytics you can track your visits and conversions TTDSG and GDPR compliant - independent of Dark Patterns and Consents. With this, you challenge Consent Bias and distortions and benefit from real and meaningful data, based on which you can optimize your website and spur your business success.