Gaming the mind: Unmasking 'dark patterns' in video games

Stepping into a virtual realm where every move you make is not solely your own but is subtly orchestrated by game designers — where there could be 'dark patterns' controlling your gaming experience, dopamine rushes and spending habits — is a concerning but not unrealistic portrayal of the future of gameplay.

Ongoing regulatory debates in the EU about limiting ‘loot boxes’, in-game containers that mask randomised content which players purchase using real or in-game currency, attempt to address this issue (Osborne, 2023). Belgium, Finland and the Netherlands have declared loot boxes purchasable with real money to be gambling and are trying to impose restrictions on them (Covington, 2023). Apart from loot boxes, the US Federal Trade Commission (FTC) recently imposed a fine of $245 million on Epic's game, Fortnite, drawing public attention to how in-game interface designs related to privacy settings and purchases can intentionally be crafted to undermine privacy and harm consumer welfare, with especially detrimental effects on children (FTC, 2022).

While the issues of loot boxes and unlawful interface settings are currently being examined separately and may appear unrelated, there is a promising approach to address these problems in tandem, starting with the 'dark pattern' concept, an emerging regulatory objective in the EU (Santos & Rossi, 2023). From interface manipulation to the allure of loot boxes, I argue that by examining the player manipulation practices of the gaming industry, the current discourse of dark patterns in legal academia, including the interpretation of ‘interface’, will be substantially enriched.

The 'dark pattern' concept extends beyond interface design to system design

Coined by Harry Brignull (2023), a dark pattern is defined as "tricks used in websites and apps that make you do things that you didn't mean to, like buying or signing up for something". Although HCI researchers have introduced numerous taxonomies of dark patterns, the concept remains 'Wittgensteinian' in nature (Mathur & Mayer, 2021, p. 6). What remains relatively unexplored is the role of dark patterns in system design. Indeed, when we move beyond the surface level of user interfaces, it becomes evident that the term “dark pattern” can naturally be interpreted as a pattern of digital designs that are deceptive, manipulative and coercive in nature, leading users to unintended actions. This raises important questions: does the interpretation of “interface” in the context of dark pattern research need a recalibration against Article 3 of the EU Digital Service Act (DSA), which articulates that “‘online interface’ means any software, including a website or a part thereof, and applications, including mobile applications”. In the same vein, is Article 25 of DSA worthy of further clarification, since most dark pattern researchers seem to focus predominantly on a narrow understanding of “interface”?

The element of “interface” appears in primary understandings of dark patterns. At the same time, the common form of interfaces under scrutiny are “Graphical User Interfaces” (GUIs) — configurations of (commonly static) visual elements in a 2D frame on a screen that lead users from one page to another to complete an intended task. This is typically the scenario for "hot" observation sites such as cookie banners and shopping websites. However, building a dark pattern definition on these traditional graphical user interfaces will not be future-proof as other interaction techniques, such as voice-based and gesture-based interaction have the potential to become the standardised setting in the virtual world (including VR gaming). The other problem with the overfocus on traditional UI is negligence of the nature of dark patterns: the patterned adjustment of choice architecture before and after the critical decision-making moment, which may or may not be achieved by fashioning a series of (static) interfaces. Indeed, upon closer look, many of the most discussed dark pattern types are not even bonded to UI (e.g. bait and switch, fake scarcity) but are long-lasting marketing tactics in nature. If it is the digital environment that makes dark patterns a unique issue to be solved through the EU Digital Service Act, then the question remains why the concept seems to prevailingly anchor on a narrow understanding of interfaces. This is where the observation site of video games shows its value, as most of the time the finessing of choice architecture in games does not engage with the typical UI but is still indigenous in the digital environment as a typical human-computer “interaction” that can be covered by the “online interface” definition in DSA.

Video games as a unique observation site for the reconceptualisation of dark patterns

Due to the paradigm shift in revenue within the video game industry, gradually moving away from one-time purchases towards freemium business models and from “Game as a Product” to “Game as a Service”, recent years have seen an increase in studies on dark pattern designs in video games, particularly from fields of psychology and health (Dahlan & Susanty, 2022; DarkPattern.Game, 2024). While dark patterns in video games differ significantly from mainstream UI-level taxonomies, they align with a broader understanding of dark patterns at the algorithmic and system level.

For example, as argued by Evans (2022, p. 427), loot boxes are “merely one piece of this larger trend in dark patterns on the web,” which “can even induce compulsive or addictive online behavior”. Goodstein (2021) suggests that, instead of associating loot boxes with gambling laws, they could be more effectively regulated by targeting dark pattern designs with a broader interpretation. A recent report on addictive designs of online services by the European Parliament (Committee on the Internal Market and Consumer Protection, 2023, p. 10) underscores the close interaction between the concept of “dark pattern” and “addictive designs” and calls for a reassessment of the taxonomies of dark patterns proposed by the European Commission, as "certain addictive design features may not be taken into account in the current legislation" (Committee on the Internal Market and Consumer Protection, 2023), which likely includes specific video game designs.

Other than loot boxes, gameplay designs such as "grinding" (as a player needs to do the same thing in the game repetitively in order to progress, seemingly for arbitrary reasons) and dynamic difficulty adjustment algorithms (as in-game algorithms to automatically and continuously modify the level of difficulty or challenge experienced by a player during gameplay) can potentially be evaluated through, but also challenges the mainstream understanding of dark patterns. These are undoubtedly “dark” patterns when they are designed to exploit user vulnerabilities (e.g., cognitive biases like sunk cost fallacy and fear of missing out) to nudge players into choices they would not have otherwise made, often for profit-making. Unfortunately for players, these are not just alarmist scenarios but reality: For example, Activision Blizzard has revealed a design of “encouraging in-game spending by giving spenders favorable matchmaking”, while Electronic Arts also disclosed a design of “adjusting difficulty in its games in order to push people toward buying more loot boxes”. All these designs have already raised public concerns (Sinclair, 2024).

The promising future of dark pattern regulation

Overall, the prospect of dark pattern regulation remains promising. Some US policymakers have begun seeking a comprehensive regulatory framework to combat dark patterns (Warner, 2019). Meanwhile, legal researchers in the EU examine various aspects of dark patterns within different legal frameworks, including the Unfair Commercial Practice Directive, General Data Protection Regulation, and the Digital Service Act, the Digital Market Act (Graef, 2023). Nonetheless, there is also an opportunity to delve deeper into the concept of "dark patterns" from a systematic and algorithmic perspective. This may be facilitated by the upcoming EU Artificial Intelligence Act, where specific dark patterns could potentially be prohibited as part of manipulative AI practices (Leiser, 2023). More importantly for legal researchers, policymakers, and regulators in the EU and beyond, it is worth acknowledging that video games remain one of the most relevant and unique environments, alongside social media platforms, for exploring the boundaries and depth of the ‘dark pattern’ concept beyond the current focus on the arrangement of buttons and layouts of traditional 2D user interfaces, shedding light on under-researched evidential design practices that could inspire and enrich the discourse of dark pattern regulation.