Seminar with Szymon Osmola (Tel Aviv University)

Reluctant Incrementalism

The seminar will be a hybrid meeting. It will be held in room 110 on Bracka 12, Kraków and Teams on June 26, 2023 (Monday, 16:00 GMT+2). 

Abstract.

This paper introduces the concept of reluctant incrementalism: piecemeal regulation that takes place at a slow place and within prescribed limits. Whereas incremental change is often desirable, if not necessary, reluctant incrementalism can be criticised for stifling innovation and hindering beneficial reforms. The paper focuses on one case study: the emerging law of dark patterns, that is features of the online choice architecture that manipulate users into making detrimental decisions. The debate on regulating dark patterns in often conducted within the “rules versus standards” debate: do we prefer precise but rigid rules, or flexible but sometimes unpredictable standards to address dark patterns? This debate exhibits two features of reluctant incrementalism: the transition from standards to rules in regulating dark patterns proceeds very slowly; and more creative regulatory solutions are usually not considered. The paper argues for a more experimentalist approach, that goes beyond the “rules versus standards” debate, and calls for multifaceted regulation that has a potential to comprehensively address harms caused by dark patterns. It thus contributes to the jurisprudential literature on rules and standards, as well as the debate on regulating cyberspace.

This research was funded by the Priority Research Area Heritage under the program Excellence Initiative – Research University at the Jagiellonian University in Krakow