The judicial construction of non-expressly consented practices: from STS 1441/2025 to dark patterns

Abstract

STS 1441/2025 of 17 October substantively addresses the concept of non-expressly consented practices under Article 82.1 of the Spanish Consumer Protection Act. This article examines the procedural history of the AUDASA case and the Supreme Court’s construction of this category, focusing on the absence of express consent, an imbalance contrary to good faith and defective information provided to consumers. It also analyses its limits in relation to contractual breach, unfair commercial practices and the difficulties arising from the nullity of already executed practices. Finally, the article explores the possible extension of this reasoning to nonclausal business conduct in digital environments, particularly dark patterns.