Have you noticed how some websites are set up to make it difficult for you to carry out certain actions?  Or make you think that a product is selling out so fast you may miss out?  If you are on Twitter it is well worth following the account “Dark Patterns” which “showcases” examples of the techniques used by websites to “nudge” consumers into behaviour that may not be in their best interests.

The European consumer body BEUC has carried out a study of 11,000 websites which showed that design choices and patterns of operation that steer the user’s decision-making are nearly always present.  Such practices include creating a false sense of urgency, eg by saying x number of users have bought that item that day or that there are only two of that item left when there are more left) or hijacking the transaction (for example, sneaking a subscription into the basket).  Some platforms have also been found to design their interface in a way that consumers would share more data than they would normally do, or by making it harder to deactivate privacy-intrusive features.

The BEUC report points out that consumers increasingly face “dark patterns” because on-line user interfaces are designed to deceive consumers to take decisions that are not in their favour but serve companies’ commercial interests. The use of unfair practices to distort consumers’ economic behaviour is not new, but it’s now a different ball game due to the massive collection of data and the use of technology to build consumer profiles and anticipate consumer behaviour. EU consumer law already has partial capacity to address these situations, but it is currently not sufficiently enforced. In addition, BEUC says that EU law must be updated to tackle these unfair practices and ensure consumers are not harmed by misleading user interfaces and data personalisation techniques.

BEUC have made a series of recommendations for the Consumer Protection Cooperation Network and the European Commission to tackle the problems.

Recommendations for the CPC network:

• Enforce more consistently the Unfair Commercial Practices Directive against dark patterns as the Directive is already capable of addressing many of these practices.
• Identify the widespread use of dark patterns by carrying out ‘sweep’ investigations in digital markets but also in specific sectors.
• Hold workshops involving stakeholders including consumer organisations in the context of the CPC network to discuss enforcement challenges and approaches to dark patterns.
• Incorporate more behavioural insights into enforcement investigations and activities to assess how a given practice is likely to affect the actual behaviour of consumers.
• In the context of an enforcement case, request companies to disclose complete information about the use of behavioural experiments for the design or optimisation of a given interface.
• Impose dissuasive sanctions on traders for misleading and unfair user interface design to create a truly deterrent effect.
• Compile and publicise national decisions of public authorities or civil courts on dark patterns under the coordination of the European Commission, creating a database of unfair design practices.
• Provide guidance to companies on how to avoid designing their choice architecture in a way that can be unfair and misleading on consumers.

Recommendations for European Commission regulatory intervention: 

• Review the UCPD to introduce new benchmarks for the assessment of what constitutes (un)fairness in commercial communications to update the “average” consumer concept, including how digital asymmetry (ie the trader's control of the online environment) affects consumers’ transactional decisions.
• Introduce a new rule to the UCPD easing the burden of proof for plaintiffs and enforcement authorities.
• The establishment of an obligation for business to respect the general principle of “fairness by design”.
• Certain dark patterns should be banned and set out in the annex of the UCPD, such as the practice of “confirm-shaming” to steer users into or away from - or make them feel guilty about - making a specific choice or from refraining to take action.
• Review the Consumer Rights Directive (CRD) to introduce a specific obligation to have a contract cancellation button which should make the cancellation of the contract as easy as the agreement to enter into it.
• Finally, the European Commission should, for both the CRD and the UCPD, propose to introduce an anti-circumvention clause. This clause would prohibit traders from deploying contractual, technical and behavioural measures to bypass the obligations included in those Directives.

Significance for the UK

In the UK, the government has consulted on making changes to consumer law, for example to deal with subscription traps, the CMA has been dealing with subscription traps and the ASA has also produced guidance for advertisers on subscriptions and subscription traps.  The government consultation also considered the online exploitation of consumers through dark patterns and other practices such as drip pricing (where a consumer is advertised a price for goods, services, or digital content, but then finds that additional fees and charges have been added to the price before the transaction can be completed).  The UK’s upcoming online advertising review may also lead to changes.  It is therefore likely that provisions to deal with these practices will also find their way into UK law.