Online choice architecture (OCA) is the way in which online information is designed and presented to consumers to influence their decision-making process. This may include the ways in which search results are ordered, the number of steps needed to cancel a subscription, or whether an option is selected by default.
The UK's Competition and Markets Authority (CMA) clarifies that 'OCA' is a neutral term, as it can legitimately improve user experiences, but it can also distort free choice, confuse and coerce. There is, however, a growing concern that some types of OCA (often called 'dark patterns') can harm competition and consumers.
There is no exhaustive list of dark patterns or problematic OCA practices, and different examples have been used when determining the scope of regulation in the area.
For example, in the context of its Online Rip-Off Tip-Off campaign, the CMA states the most common harmful practices online are pressure selling, hidden charges, subscription traps, and fake reviews.
Meanwhile, the joint position paper of the CMA and ICO, which addresses harmful OCA used to present choices about data processing, assesses:
Characteristics of harmful practices include:
Asymmetry | Overemphasising the features of one choice, while not displaying other choices with equal prominence, such as choosing a particular colour for one option. |
Covertness | Steering consumers to make specific decisions without them being aware of the manipulation, such as adding options to a choice set as decoys in order to make other option(s) look more appealing. |
Deception | Inducing false beliefs with information such as fake countdown timers or false testimonials. |
Hiding | Not disclosing all relevant information, for example drip pricing. |
Restriction | Not allowing consumers to freely navigate through an interface, for example forcing them into registration or some other forced action, or making it difficult to cancel or opt-out. |
Disparate treatment | Giving more favourable treatment to consumers with more resources, for example allowing them to skip interfaces while gaming. |
Potentially harmful OCA can be deployed in many digital environments, regardless of industry. Examples which may be used in some video games are listed below.
Virtual currency
Virtual currency is often used in gameplay. The Committee of Advertising Practice (CAP) has defined it as "fictionalised currency used within a game or system, often with a name such as ‘credits’, ‘gold’, or ‘points’, which may or may not be purchasable with real money". Players can then use this currency to buy in-game items, such as lives or tools.
Virtual currency might encourage players to make smaller, more frequent purchases in games which can add up quickly especially if costs aren't transparent. The artificial lifespan of these in-game items could lead to rushed or unnecessary buying choices.
Pay to win/Pay to skip
'Pay to win' or 'Pay to skip' options allow players to buy or skip levels which allow them to progress in a game and/or gain an advantage and surpass difficulties in exchange for money. These features have potential to cause harm if players are encouraged to pay to advance faster in a game or service, even when it's not necessary.
Impersonation
Many online games allow players to see representations of their friends or other players in their own gameplay. Occasionally, players might get alerts about those other players, eg X completed this level, X sent you a gift. However, it's problematic when the game impersonates other players by attributing actions to them which they never made, misleading the player about what their friends are really doing in the game.
The UK's Consumer Protection from Unfair Trading Regulations 2008 currently prohibit actions which amount to unfair commercial practices (or promotion thereof), misleading actions and omissions, and aggressive commercial practices.
However, a tailored approach to tackle harmful OCA is emerging, as it has become a focus for the UK government and regulatory bodies which have recognised the significant impact OCA has on consumers. This approach encompasses the following:
The approach to address harmful OCA is still evolving, but it's important that businesses carefully assess their OCA and also keep abreast of new developments in the law.
The EU's new Digital Services Act (DSA) bans the use of 'dark patterns by online platforms to the extent not already covered in the Unfair Commercial Practices Directive or the GDPR.
An online platform is an information society service consisting of the storage of information provide by, and at the request of, a recipient of the service. This includes cloud computing, web hosting, file sharing and online platform services. Where a hosting service "at the request of a recipient of the service, stores and disseminates information to the public, unless that activity is a minor and purely ancillary feature", it will be an online platform to which the rules on online interfaces will apply. Some game businesses will be caught under this definition.
The DSA divides online platforms into three groups. The category of ‘micro or small enterprises’ contains enterprises that employ fewer than 50 persons and have annual turnovers and/or annual balance sheet totals that do not exceed EUR 10 million. This category is explicitly excluded from the obligations mentioned in the DSA.
All other online platforms are bound by the DSA with additional obligations on very large online platforms (VLOPs). An enterprise will be considered to be a VLOP if the online platform provides its service to an average monthly number equal or higher than 45 million active recipients in the Union. Game businesses caught within the definition are prohibited from designing, organising or operating their online interfaces in a way that deceives, manipulates or otherwise materially distorts or impairs the ability of recipients of their service to make free and informed decisions.
Banned practices relating to dark patterns include the non-exhaustive examples set out in Recital 51(b) of the DSA:
It's always advisable to 'play it straight' with consumers regardless of which specific rules apply to you but this is particularly true when the issue is high on the agenda of regulators and legislators. Game businesses should take this into account when designing online architecture, to avoid financial and reputational fall out associated with getting it wrong.
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