Awareness of the Consequences from Tacit Agreements
Implied consent, a design pattern often used in online purchases and terms and conditions, has raised significant ethical concerns. This practice, which assumes user agreement based on actions rather than explicit affirmation, can lead to users inadvertently agreeing to purchases or legal conditions without fully understanding or consciously consenting.
Implications and Concerns
Implied consent relies on psychological manipulation techniques, steering users towards choices that may not necessarily benefit the consumer. It risks undermining true informed consent, which demands explicit action like ticking a box or clicking "Accept."
Regulatory frameworks such as the GDPR emphasize that consent must be a genuine, free choice without pressure, misleading tactics, or inability to refuse or withdraw consent without detriment. Implied consent, when used to bypass explicit consent, can violate these principles and invite legal consequences.
Ethical Considerations
Transparency, user autonomy, respect, fairness, accountability, and ethical design responsibility are key ethical considerations when it comes to implied consent. Users should be provided with clear and meaningful information about what they are agreeing to, and designers should enable consumers to make autonomous choices.
Implementing implied consent without adequate user engagement can degrade trust and potentially breach privacy laws or consumer protection regulations. Designers must avoid dark patterns—techniques that trick or coerce users—and instead focus on user-centered, ethically sound experiences that uphold informed consent standards.
Balancing Act
Designers may find it challenging to strike a balance between their obligation to their client and their ethical duty to their users. It's crucial to remember that their ethical duty should come first, even when working with clients.
Case Study: The Times Website
The Times website's banner at the bottom represents an example of implied consent; by continuing to use the site, users would provide their consent indirectly. Users, often referred to as 'informavores,' are constantly scanning the user interface in search of information related to their current aims and objectives. As a result, they may overlook requests for consent, especially when these requests are less conspicuous.
Reading the Small Print
While implied consent can streamline user flows, it's essential to approach its deployment cautiously and ethically to ensure users are genuinely informed and freely consenting, as required by law and good ethical practice. There is a case for reading the small print in terms and conditions, as it can provide crucial insights into how your data is being used and what rights you have.
In conclusion, designers should be aware that using implied consent is a dark pattern and prioritize their duty to users. They should use visual design elements like color, size, and position to make requests for consent more noticeable and ensure that users are given the opportunity to make informed decisions. By doing so, they can build trust with their users and uphold the principles of transparency, user autonomy, and respect.
[1] Deloitte. (2019). The Dark Patterns Handbook. [online] Available at: https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/about-deloitte/gx-uk-en-dark-patterns-handbook.pdf
[2] Tidwell, J. (2010). Designing Interfaces: Patterns for Effective Interaction Design. [online] Available at: https://abookapart.com/products/designing-interfaces
[3] van Welie, M. (2008). Martijn van Welie's Pattern Library. [online] Available at: https://www.welie.com/patterns/
[4] Brignull, H. (2019). Dark Patterns. [online] Available at: https://darkpatterns.org/
[5] GDPR. (2018). Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). [online] Available at: https://gdpr-info.eu/art-7-gdpr/
In the realm of interaction design, it's crucial for designers to prioritize user-centered experiences over strategies like implied consent that might violate principles of transparency and user autonomy. This can help designers avoid the use of dark patterns, which are techniques that trick or coerce users, and instead focus on design patterns that foster informed consent.
UI design should strive to make requests for consent more noticeable by utilizing visual design elements like color, size, and position. This fosters a user interface that encourages informed decision-making and respects the user's right to understand and agree to terms and conditions.
