HCR Law Events

28 June 2023

Digital marketing and e-commerce matters – dark patterns

Greater awareness of so-called dark patterns in online marketing is advantageous for consumers, influencers and businesses alike. For consumers, it helps them avoid being duped and encourages them to report breaches of applicable codes and regulations. Likewise, it is important for businesses and influencers to know where the line is drawn between fair advertising and coercing consumers.

What are dark patterns?

The Advertising Standards Agency (ASA) defines dark patterns as:

‘a phrase which has been used to describe a range of behavioural and design techniques used to influence consumer choice online, in ways that exploit cognitive biases and can be detrimental to the consumer – either economically, or in terms of the use of their personal data.’

The aim of dark patterns is to confuse and coerce the consumer, as opposed to traditional marketing techniques which aim to inform and therefore persuade the purchase of goods or services. It is a form of misleading advertising.

What is the applicable legislation?

There is no current regulation that specifically targets dark patterns. However, many practices which are considered dark patterns are regulated under codes and legislation such as the UK Code of Non-Broadcast Advertising (NBCAP Code), the UK Code of Broadcast Advertising (BCAP Code) and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

What are examples of dark patterns?

Count down timers

Most consumers are familiar with the experience of browsing a retail website only to see a timer pop up telling them that they have a short amount of time to buy a certain item before a sale ends. But it’s a trick – once the timer runs out, it instantly starts again. Therefore, the consumer has been misled into believing they needed to rush to buy a certain item whereas this is in fact a fabricated deadline.

The NBCAP Code 8.17.4.e states:

‘Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary…’

Clearly, restarting the timer simply because the previous count down has run out is not an unavoidable circumstance. This practice would therefore fall foul of the NBCAP Code.

False demand

As well as count down timers, consumers can face other pressures to purchase products or services. For example- a consumer browsing for flights may be told that there are 50 people currently looking at the same flight as them, or that there are only 2 seats left at a certain price. This contravenes section 3 of the CPUTR which prohibits any unfair commercial practice which ‘materially distorts or [is] likely to materially distort the economic behaviour of the average consumer in regard to the product’.

Failure to correctly label adverts

If a consumer is not properly informed that the content they are viewing is an advert, then this could also be classed as a type of dark pattern. 2.1 of the BCAP Code states that: ‘[a]dvertisements must be obviously distinguishable from editorial content… to prevent the audience being confused between the two’.

Influencers, such as Molly-Mae Hague, have previously had social media posts banned by the ASA for failing to correctly label posts as adverts. Hence, care must be taken by influencers and businesses to make it clear to the consumer when they are advertising.

What happens next?

In the future, it is likely that greater attention will be paid to regulation in this area as advertising becomes increasingly digitalised and social media takes greater prominence in the online space. It is important therefore that consumers, businesses and influencers alike are aware of dark patterns to ensure that they don’t fall short of the relevant regulations.

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About the Author
Daniel De Saulles, Senior Associate

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