5 of 6

10 April 2024

The video game industry in 2024 – 5 of 6 Insights

Playing it straight – video games and online choice architecture

Kachenka Pribanova, Maarten Rijks and Annemijn Schipper look at regulatory scrutiny of harmful online choice architecture in the UK and the EU.


Kachenka Pribanova


Maarten Rijks


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Annemijn Schipper


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Kachenka Pribanova


Maarten Rijks


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Annemijn Schipper


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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.  

What kind of OCA is problematic? 

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: 

  • Harmful nudges: making it easy for consumers to make inadvertent or ill-considered decisions.  
  • Sludge: creating excessive or unjustified friction that makes it difficult for the consumer to get what they want or to do as they wish. 
  • Confirmshaming: pressuring or shaming someone into doing something by making them feel guilty or embarrassed for not doing it. 
  • Biased framing: presenting choices in a way that emphasises the supposed benefits or positive outcomes of a particular option, in order to make it more appealing to the consumer. 
  • Bundled consent: asking the consumer to consent to the use of their personal information for multiple separate purposes or processing activities via a single consent option. 
  • Default settings: applying a predefined choice that the consumer must take active steps to change. 

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.

Examples of OCA in video games

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. 


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. 

Regulation of OCA in the UK

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 draft Digital Markets Competition and Consumers (DMCC) Bill is intended (among other things) to reform the law on unfair commercial practices as well as combat subscription traps. The government also plans to introduce secondary legislation under the Bill to combat fake online reviews.  
  • Enforcement action, such as CAP's Enforcement Notice targeted at the misleading advertisement of free trials and promotional offer subscription services. 
  • Investigations, including the CMA's examination of urgency and price reduction claims made by Emma Sleep and Wowcher. An investigation into Simba Sleep followed the CMA's Open Letter calling on UK businesses to stop using online sales practices that could mislead consumers or apply undue pressure. 
  • Regulatory publications, such as the CMA's discussion paper and evidence review into OCA, as well as the joint position paper by the CMA and ICO on harmful designs in digital markets.  
  • Industry resources, such as the CAP advice on dark patterns. 
  • Public awareness initiatives, such as the Online Rip-Off Tip-Off campaign which seeks to educate consumers about spotting and avoiding misleading online sales tactics. Under this campaign, consumers are urged to report online rip-offs via a digital reporting form.  

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 approach to 'dark patterns' under the Digital Services Act

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:

  • making use of exploitative design choices to direct the recipient to actions that benefit the provider of intermediary services, but which may not be in the recipients’ interests, presenting choices in a non-neutral manner, such as giving more prominence to certain choices through visual, auditory, or other components when asking the recipient of the service for a decision
  • repeatedly requesting a recipient of the service to make a choice where such a choice has already been made, or
  • making the procedure of cancelling a service significantly more cumbersome than signing up to it, or making certain choices more difficult or time-consuming than others, making it unreasonably difficult to discontinue purchases or to sign out from a given online platform.

Playing it straight

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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