DSA: French Presidency pitches compromise on dark patterns, minors, compensation

The EU's Digital Services Act is a legislative proposal to regulate online services and content. [Cristian Storto/Shutterstock]

Following the third political trilogue on the Digital Services Act (DSA) on Tuesday, the French Presidency prepared a compromise text on dark patterns, protection of minors and compensations, dated Wednesday (16 March).

At the high-level meeting earlier this week, virtually all controversial points were sent back to the technical level with the view of holding one more trilogue at the end of March. In preparation for the negotiations with the EU Parliament, the Presidency shared a compromise text with the other member states on dark patterns, protection of minors and compensations, seen by EURACTIV.

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Dark patterns

The European Parliament introduced a brand-new article specifically on dark patterns, techniques employed to manipulate the users into doing something against their will, for instance extorting consent to process their personal data.

The EU Council also included an article on dark patterns, but the definition there was largely limited to online marketplaces, for example tricking someone into making a purchase.

“Providers of online platforms shall not design, organise or operate their online interfaces which are necessary to comply with the obligations under this Regulation in a way that either purposefully or in effect deceives or manipulates recipients of the service, by subverting or impairing their autonomy, decision-making or choices,” reads the compromise text.

MEPs included a non-exhaustive list of actions that would be considered as dark patterns, such as repeatedly asking users’ consent for processing their personal data or making terminating a contract significantly more cumbersome than signing.

This list is not present in the Presidency’s proposal, which however anticipates a recital would be added. Moreover, the compromise text gives the Commission under advice from a board of national authorities the capacity to issue guidance on the application of these provisions to specific practices.

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The lawmakers representing the different political groups met on Wednesday (26 January) to iron down the political priorities in view of the first political trilogue of the Digital Services Act (DSA) that will take place on 31 January.

Protection of minors

The Presidency is proposing a new article on the online protection of minors. These measures would only apply to an online platform that is “primarily aimed at minors or is pre-dominantly used by them.”

In these cases, the platforms should put in place the measures proposed by MEPs, including a high level of privacy, safety and security by design.

Importantly, the text notes that these provisions “shall not oblige the provider of online platform to process additional information in order to assess the age of the recipient of the service.”

In this case, as well, the Commission in consultation with the board can provide platforms with guidance on how to apply these rules.

A recital is also due to clarify these provisions with examples on “age verification tools; parental control tools; tools aimed at helping minors to signal abuse or to obtain support; easy-to-find references to provider- independent advice, help and reporting options or age-appropriate default settings and pre-setting options.”

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The EU lawmakers introduced specific measures for the compensation for platform users in case of infringement, upon the initiative of consumer organisations.

However, the same consumer groups warned that the wording of the Parliament’s text might accidentally restrict the existing consumer protection, as it referred to the concept of direct damage or loss, which in many cases might be difficult to prove.

During the trilogue, the French Presidency showed openness in accepting the principle, although it was not clear what form the text would take. The Presidency’s compromise retakes the Parliament’s text in full, with the only modification of striking out the word ‘direct’, hereby acknowledging the concerns from consumer groups.

[Edited by Nathalie Weatherald]

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