20 November 2023
THREE TIPS TO AVOID DARK PATTERNS IN YOUR CONSENT INTERFACES
The second of our Privacy UX series examines some of the most prevalent dark patterns in consent interfaces and the best ways to avoid them.
In previous articles we explored how Privacy UX helps companies build digital trust with their customers through clear communication and consent collection, and the looming threat of ‘dark patterns’ in company websites and how they undermine customer trust by tricking customers into granting consent to the organization to collect, share and sell their personal data. In this final part of our series, we examine how international privacy legislation has shaped UX strategies over the past two decades, and how those strategies may evolve in the future.
As financial institutions embrace digital service delivery models, marketing and technology leaders must find ways to attract new customers and grow existing relationships. Successful firms balance customer-centric web design while emphasizing the privacy rights of those customers – a strategy known as Privacy User Experience (Privacy UX).
At a time when security breaches are increasingly visible, a coherent Privacy UX strategy demonstrates a commitment to protecting customers’ personal data and honoring their privacy rights across the core services offered by a business.
Companies must demonstrate compliance with strict international regulations governing data protection and privacy practices such as the General Data Protection Regulation (GDPR), California Privacy Rights Act (CPRA), and Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). To this end, a website must offer a clear, user-friendly interface that explains the organization’s personal data policies and the associated risks, while offering consumers control over whether they will allow the organization to collect and process their personal information.
Historically, the US Federal Government has implemented a series of sectoral consumer protection laws, which afford limited protections of personal information in different business contexts:
Enacted to protect consumers from data misuse that can lead to identity theft, these laws require that organizations explain why they need to collect personal information (PI), what they intend to do with it, and how they intend to protect it.
However, nothing in these laws prevents an organization from tracking and targeting consumers. As long as the organization states its objectives up front, they are relatively free to collect and use the data as stated. For each of the above laws, consumer consent is enabled by default as a condition of receiving an organization’s services.
When the California Consumer Privacy Act (CCPA) came into effect in January 2020, it represented a significant milestone becoming the first omnibus privacy law in the nation. CCPA granted California residents extensive rights, including access to their personal information and the ability to prevent its sale. Residents can also request the deletion of their personal information.
Websites catering to Californians must also provide privacy notices and opt-out mechanisms, setting a precedent for user-centric privacy practices. In addition, the California Privacy Rights Act of 2020 (CPRA) amendment to CCPA introduced an agency which enforces these protections.
Despite proposals such as the Consumer Online Privacy Rights Act (COPRA) and the Online Privacy Act, no federal law has been enacted, which means that the US still lacks unified privacy standards. However, some states signed into law their own regulations using California as the template. At the time of writing, 13 states have implemented similar privacy laws and 16 states have active privacy bills in process.
The growth in the number of state laws is symbolic of a wider US trend that seeks to empower users and protect data. Here, the philosophical framework around data privacy has shifted decisively from a ‘harms-prevention’ approach – which mitigates problematic data actions in certain sectors – to an affirmative, ‘rights-based’ approach, where individuals own their personal information and control who collects and processes it. This shift is leading to a push for a unified approach across all sectors and geographical business regions with sector-specific guidance where needed.
Addressing Privacy UX requirements in Canada requires striking a delicate balance between user experience and design alongside compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA). Following the GDPR model, PIPEDA governs the collection, use, and disclosure of personal information of Canadian residents by private-sector organizations.
Designers operating in Canada must incorporate elements that address this legislation when creating websites and apps. These include clear information about data collection, intuitive consent mechanisms, and user-friendly interfaces that enable individuals to control personal information. Finding the correct balance between functionality and compliance presents both a challenge and an opportunity as designers seek to build trust without compromising the usability and visual appeal of their products.
Quebec’s Bill 64, now enacted as Law 25, represents a comprehensive overhaul of the privacy landscape in the province. Formally adopted in September 2021, the law imposes a three-year transition period, which commenced in 2022, for businesses to adapt to the new requirements.1
Key provisions include enhanced privacy rights for individuals, obligations related to data breach notifications, the appointment of a designated privacy officer, mandatory Privacy Impact Assessments (PIA), privacy notices for technology-driven data collection, and the introduction of subject rights resembling those in the European Union’s GDPR law. Law 25 also outlines detailed requirements for valid consent, including provisions for sensitive personal information.
To balance comprehensive legal conditions with user expectations, organizations must often deploy significant resources and expertise. Ensuring that design choices align with PIPEDA’s principles, such as consent, accountability, and data minimization, requires meticulous attention throughout the design and development lifecycle. Furthermore, organizations and their website designers must stay up to date with potential amendments or updates to PIPEDA as Canada addresses emerging technologies and global privacy concerns.
The Privacy UX landscape in Europe has been shaped to a significant degree by the General Data Protection Regulation (GDPR), which revolutionized how businesses must approach user data and design experiences. GDPR’s emphasis on user consent, transparency, and data rights has significantly influenced UX design strategies across the European Union and the wider region.
Designers must build interfaces that prioritize user control, and include unambiguous consent mechanisms while respecting an individual’s right to manage their data. This shift toward privacy-centric design – where privacy is seamlessly integrated into the user experience – has led to innovative strategies that aim to enhance transparency while giving users greater control over their personal information.
Going further back, the ePrivacy Directive of 2002 requires that websites ask visitors’ for their consent in allowing data tracking cookies to be placed on their device. However, the ePrivacy Directive has been interpreted differently by several EU countries, leading to discrepancies in users experience cookied, web banners and pop-up messages.
Decisions and directives from courts and data protection authorities across the EU provide clear guidance on the implementation of the GDPR and associated regulations. These rulings impact Privacy UX practices and underline the legal consequences of non-compliance. For instance, Italy’s Garante per la protezione dei dati personali states that websites must comply with a range of requirements:
Other EU countries have implemented specific national data protection laws that align with GDPR, specifying certain aspects of data protection that impact website Privacy UX. This is a fast-changing regulatory environment, and further amendments to GDPR and the ePrivacy Directive can be expected in the near future, with implications for UX design practices resulting from updated guidelines, refined consent requirements, and a recognition of emerging technologies such as AI and the Internet of Things.
Approaches to Privacy UX in the U.S., Canada, and Europe have plenty of elements in common, especially when balancing the user experience with data protection and legal compliance.
However, differences arise around implementation elements driven by regional legal requirements and cultural expectations. Europe’s GDPR sets a high bar for explicit consent and stringent data protection measures, nudging Privacy UX design toward greater transparency and control. Canada’s PIPEDA, while emphasizing similar principles, may differ in implementation and enforcement in comparison.
In contrast, the US’s blend of federal and state-level regulations results in multiple approaches, with some states adopting more comprehensive privacy laws than others. Navigating diverse legal frameworks and meeting user expectations involves a detailed understanding of regional landscapes and the alignment of design practices.
Crafting effective privacy-centric UX strategies against a background of shifting regulatory expectations is pivotal when building trust with consumers and maintaining compliance with new legislation. To stay ahead of the curve, businesses must adopt proactive measures that prioritize consumer privacy while delivering seamless experiences.
We recommend the following strategies to navigate these challenges:
Privacy by design. Integrate privacy considerations at the initial stage of product or service development, ensuring that privacy is embedded in the user experience. Implement encryption and robust security measures that protect user data, ensuring full lifecycle protection.
Data minimization. Limit data collection and processing to what is essential for service delivery, avoiding unnecessary or excessive gathering of user information.
Cookie deprecation. Prepare for the deprecation of third-party cookies by exploring alternative technologies such as first-party data (information collected directly from consumers), contextual targeting, and privacy-preserving solutions for personalized experiences.
Employee education and training. Foster a privacy-aware culture within the organization through regular training programs and awareness initiatives for employees who handle user data.
Regular compliance audits. Conduct periodic assessments to ensure compliance with evolving regulations, review with legal and compliance teams, and update privacy policies and practices accordingly.
By following this guidance, businesses can not only adapt to changing privacy expectations but also foster trust and loyalty among users. Organizations should also nurture a culture of privacy-conscious design and user empowerment in order to respond to changes in the regulatory landscape.
In light of heightened privacy concerns and frequent data breaches, customers today increasingly value transparency and control over their data. Moreover, they expect to be able to delete, share, and transfer their information at will. Companies investing in Privacy UX through centralized platforms are well positioned to build consumer trust and maintain a competitive advantage.
On the other hand, a deficient Privacy UX leads to customer frustration and erosion of trust while posing legal and financial risks. As a result, the interplay between Privacy UX and data security is crucial, necessitating robust security measures – especially for financial services websites.
To accommodate evolving regulations, many companies have added centralized self-service portals, enabling consumers to manage privacy preferences, consent, and data subject requests. A Gartner survey indicates that more than 30% of consumer-facing organizations plan to offer such self-service options.3
Advertising is another crucial consideration, as data provided by consent is highly attractive to businesses targeting an online audience with personalized offers. Advertisers recognize the value of collecting personal interest information and preferences directly from consenting consumers, rather than inferring what consumers may want to see from their third-party, digital interactions
A strong Privacy UX strategy fosters stronger relationships between an organization and its customers. If a website:
As well as user-friendly policies, consent management, and clear communication, businesses should also invest in data encryption and continuous user education. This not only safeguards users but also instils them with confidence when conducting online interactions, which in turn delivers long-term engagement and higher customer lifetime value.
Businesses that take this approach have a head start. As global awareness of data privacy grows, we can expect to see more countries and regions strengthening data protection regulations that impact website Privacy UX in the future.
Capco partners with financial services firms to design and build security and privacy solutions aligned to each firm’s unique business objectives and regulatory obligations. Whether your organization needs tactical advice to overhaul your Privacy UX practices, or a long-term strategy and technological implementation to manage data use and protection across the enterprise, Capco can support your vision and goals for business, data, and security across financial services.
1 https://www.onetrust.com/blog/quebecs-law-25-what-is-it-and-what-do-you-need-to-know/
2 https://www.cookielawinfo.com/italy-dpa-new-cookie-consent-guidelines/
3 https://www.gartner.com/en/newsroom/press-releases/2022-05-31-gartner-identifies-top-five-trends-in-privacy-through-2024
