Navigating the ethical and legal landscape of Data Privacy: Dark patterns and consent in the digital age

11 Mar 2024
by Ridwaan Boda and Shaaista Tayob

In today’s digital landscape, safeguarding personal information has become increasingly vital, especially with heightened scrutiny from regulatory bodies like the South African Information Regulator (“the Regulator”). Direct marketing has emerged as a focal point for the Regulator’s attention. Consequently, organisations face mounting pressure to ensure their data privacy practices align with laws and regulations, particularly regarding obtaining consent for data collection, processing, and marketing in an ethical and transparent manner.

Various approaches exist for securing data subject consent, but some organisations resort to web design techniques that can have the effect of directing data subjects into sharing personal information or providing consent. These techniques, commonly known as dark patterns, encompass design elements strategically crafted to steer data subjects towards actions benefiting the website operator. Some commentators suggest that such techniques are often contrary to the data subject’s intentions or best interests and push the boundaries of what is both ethical and legal. It is not the intent of this article to argue for or against the use of dark patterns but merely to bring attention to this practice which, depending on whether you are a website operator or data subject, could either be viewed as an opportunity or a concern.

Examples of dark patterns range from button placements to concealed opt-out options, allegedly by exploiting cognitive biases and diminishing user autonomy. While not explicitly addressed in the Protection of Personal Information Act (“the Act”), the use of these techniques raises the question as to whether the Act has been violated or not.

The purpose of the Act is to safeguard personal information in accordance with the constitutional right to privacy, balancing it against other rights and important interests such as access to information, the free flow of information and freedom of economic activity. The Act further sets out conditions for the lawful processing of personal information, aligned with international standards, and provides individuals with rights and remedies to protect their data.

Some commentators believe that the use of dark patterns not only goes against the purpose of the Act but also many other provisions in the Act such as purpose and limitation, data subject participation, accountability and so forth. It’s foreseeable that the Regulator may view such techniques unfavourably, potentially leading to enforcement actions against offending organisations.

Moreover, as consumer awareness of data privacy rights increases, there’s a growing risk of backlash against organisations employing such practices. To mitigate this risk and uphold legal and ethical standards, organisations can take proactive measures such as conducting privacy impact assessments and promoting privacy by design. This may include organisations opting to prominently display notices, ensuring upfront user awareness of data collection practices and rights, using clear and understandable language, and offering transparent consent options with privacy-friendly defaults. That being said organisations can still achieve their commercial and data monetisation objectives through carefully structuring their offerings with the guidance of an expert commercially minded data privacy counsel.

In conclusion, though they’ve been in use for a long time, dark patterns are increasingly noticed, disliked by regulators and educated consumers, and potentially contrary to the spirit, intent and purpose of data privacy legislation. Data subjects are becoming more savvy and legislators more strict. Organisations that look to implement dark patterns or seek to obtain consent through non-traditional means do so at the risk of regulatory action. Notwithstanding this organisations may still take proactive steps which comply with laws in order to achieve their data monetisation aspirations.

Should your organisation need guidance in navigating these challenges and require assistance in monetising data within the ambit of legislation reach out to our expert TMT experts for assistance.

 

Ridwaan Boda
Executive | Technology, Media and Telecommunications
rboda@ENSafrica.com

Shaaista Tayob
Associate | Technology, Media and Telecommunications