The FTC's 2022 staff report and Article 25 of the EU Digital Services Act represent the same regulatory conclusion reached independently: that disclosure-based remedies do not work when the harm is architectural.
Article 25's text prohibits online platforms from designing, organizing or operating their interfaces in a way that deceives or manipulates users or otherwise materially distorts or impairs their ability to make free and informed decisions.
That is a legal instrument aimed at design rather than at speech, and it is genuinely new. Consumer protection has historically regulated claims — what you said about the product. This regulates geometry.
The reason for the shift is the finding in chapter 263. Dark patterns contain no false statements. Default selection, visual salience, friction placement and confirmshaming work on satisficing, on defaults read as recommendations, and on effort discounting. A user cannot read their way out of an interface designed to exploit automatic processing, because the exploitation happens below the level at which reading occurs.
Which means the standard remedy — require disclosure, let the market sort it out — fails, and had been failing for a decade.
The ethical test for a designer mirrors chapter 331's exactly, and it can be applied on a whiteboard.
Would this pattern survive being explained to the user, in plain language, on the same screen?
Run it. We have pre-selected the more expensive option because most people do not change it. We have made cancellation six screens long because a proportion of people give up. We have written the decline button as No thanks, I don't want to save money because it is uncomfortable to click.
Each collapses on disclosure, which is the diagnosis.
The reverse test identifies good design, and it passes easily. We have defaulted to the privacy-protective setting. We have put cancellation in the same place as signup. We have shown the total price including fees on the first screen.
For a practitioner, the relevant fact is that the person implementing the pattern is rarely the person who decided on it, and the euphemism of chapter 339 does most of the work: it is called optimization, conversion improvement, reducing friction on the happy path. Naming it plainly is the intervention available to an individual inside an organization.
For a user, the counter-response is to complain, because these regimes are complaint-driven and enforcement follows volume.
This counters Law 23.
Counters Law 23 — Engineer the Default, Skip Persuasion