Luiza Jarovsky (Tel Aviv University, Buchmann Faculty of Law) has posted “Transparency by Design: Reducing Informational Vulnerabilities Through UX Design” on SSRN. Here is the abstract:
Can transparency help us solve the challenges posed by dark patterns and other unfair practices online? Despite the many weaknesses of transparency obligations in the data protection arena, I suggest that a Transparency by Design (TbD) approach can assist us in better achieving data protection goals, especially by empowering data subjects with accessible information, facilitating the exercise of data protection rights, and helping to reduce informational vulnerabilities. TbD proposes that compliance with transparency rules should happen in all levels of design and user interaction, instead of being restricted to Privacy Policies (PPs) or similar legal statements. In a previous work, I discussed how manipulative design can exploit behavioral biases and generate unfairness; here, I show how failing to support data subjects with accessible information, adequate design and meaningful choices can similarly create an unfair online environment.
This work highlights the shortcomings of transparency rules in the context of the General Data Protection Regulation (GDPR). I demonstrate that, in practice, GDPR obligations do not result in effective transparency for data subjects, increasing unfairness in the data protection context. Consequently, data subjects are most of the time unaware of how, why, and when their data is collected, are uninformed about the risks or broader consequences of their personal data- fueled online activities, do not know their rights regarding their data, and do not have access to meaningful choices.
In order to answer these shortcomings, I propose TbD, so that we – the data subjects – are not only effectively informed of the collection and use of our data, but can also exercise our data subjects’ rights, make meaningful privacy choices, and mitigate our informational vulnerabilities.
The main goal of TbD is that data subjects will be served with information that is meaningful and actionable, instead of a standard block of text that acts as a liability document for the controller’s legal department – as currently happens with PPs. Design, manifested through User Experience (UX), is a central tool in this framework, as it should embed TbD’s values and premises and empower data subjects throughout their interaction with the controller.