Dark patterns in the post-cookie era: How interface regulation transforms digital advertising in the EU and the US

Abstract

The transition toward the so-called post-cookie era, driven by the decision of major technology companies to abandon third-party cookies, is significantly reshaping the architecture of digital advertising. In the context of narrowing possibilities for conventional online tracking, interface practices for obtaining consent and interacting with users have been gaining importance. However, these practices are increasingly being associated with so-called dark patterns. Accordingly, there arises a need to assess how different legal systems respond to such challenges. Since leading jurisdictions set the benchmarks for global regulation of behavior in information and telecommunication networks, including the Internet, the European Union and the United States play a key role in this process. In this light, the present study examines the similarities and differences between European and American approaches to regulating dark patterns. The stated objective has determined the selection of sources and research methods, which include EU and US legal acts, enforcement practices undertaken by data protection authorities, methodological documents, academic publications, and the results of the author’s own empirical analysis. The latter encompassed an examination of interface practices across several popular websites and services. The findings indicate that the European model is based on preventive regulation, which restricts the use of manipulative practices already at the design stage of user interfaces. At the same time, the American model functions predominantly on a post-intervention basis. Taken together, this leads to the conclusion that effective regulation of digital advertising requires the development of a digital environment architecture grounded in the principles of predictability, transparency, and data minimization, rather than on restricting manipulative practices. These processes should be ensured by both applicable legislation and specific algorithms designed by technology companies.