Dark patterns have been a hot topic for advertising/consumer regulators in the last couple of years, and legislators and regulators are taking note.  It's a phrase that can be moulded to fit the allegedly harmful to consumers practice a regulator or legislator is looking to prohibit.

This article will look in more detail about what various bodies have said is a dark pattern and how their risks can be mitigated.  For now, a working definition could be that they are online design practices which have the effect of misleading or manipulating consumers into taking actions they wouldn't otherwise have taken.  They matter because regulators are looking to use existing law against them and legislators are developing, or have developed, new tools. Being aware of their hallmarks and examples of practices which are under particular scrutiny will help services take steps to reduce the risk of regulatory scrutiny.

Official sources

An EU-level legislative definition, and prohibition, of a "dark pattern" comes in article 25 of the Digital Services Act, even though the article doesn't use that term and refers instead to "online interface design and organisation":

• Providers of online platforms shall not design, organise or operate their online interfaces in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions.

The recitals to the DSA provide this description:

• Dark patterns on online interfaces of online platforms are practices that materially distort or impair, either on purpose or in effect, the ability of recipients of the service to make autonomous and informed choices or decisions. Those practices can be used to persuade the recipients of the service to engage in unwanted behaviours or into undesired decisions which have negative consequences for them.

This followed the European Commission referencing the concept in its December 2021 updated guidance on the Unfair Commercial Practices Directive:

• the term ‘dark pattern’ is used to refer to a type of malicious nudging, generally incorporated into digital design interfaces. Dark patterns could be data-driven and personalised, or implemented on a more general basis, tapping into heuristics and behavioural biases, such as default effects or scarcity biases… traders should take appropriate measures to ensure that the design of their interface does not distort the transactional decisions of consumers

The OECD in October 2022 proposed a definition to facilitate discussion among regulators and policy makers:

• Dark commercial patterns are business practices employing elements of digital choice architecture, in particular in online user interfaces, that subvert or impair consumer autonomy, decision-making or choice. They often deceive, coerce or manipulate consumers and are likely to cause direct or indirect consumer detriment in various ways, though it may be difficult or impossible to measure such detriment in many instances.

The then UK government announced in April 2022 that it would continue to research this subject to identify specific consumer harm and how it can be tackled, but offered in the meantime the following concern about "preventing online exploitation of consumer behaviour":

• Businesses may design webpages in such a way to nudge consumers towards decisions that they would not otherwise have taken. As more data becomes available to businesses via their web operations, some have utilised it in a way that distorts free choice resulting in unfair competition … there is growing evidence of the negative impact of exploitative online choice architecture practices.

The ASA had referenced them in February 2022 in guidance intended to shed "some light":

• The term "Dark patterns” 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. These practices cross the line beyond persuasion … aiming instead to confuse and coerce.

The CMA's April 2022 discussion paper on online choice architecture suggested that:

• Common examples of choice architecture include the order of products in search results, the number of steps needed to cancel a subscription, or whether an option is selected by default… choice architecture can also hide crucial information, set default choices that may not align with our preferences, or exploit our attention being drawn to scarce products.

The CMA categorised "categorising practices according to whether they affect choice structure (the design and presentation of options), choice information (the content and framing of information provided), and choice pressure (through indirect influence of choices)".

The CMA announced on 30 November 2022 that it was starting "a new programme of consumer enforcement work focused on so-called ‘Online Choice Architecture’ and aimed at tackling potentially harmful online selling practices, including pressure selling tactics such as urgent time limited claims."  Two examples it gave of its investigations were of "urgency tactics such as countdown clocks, where sellers put pressure on shoppers to buy quickly" and "eye-catching discount offers, such as ‘50% off’ claims, when the real price reduction may not be as great as claimed".

Gathering together the hallmarks of a dark pattern

Taking a step back, there are various hallmarks which appear across these definitions of dark patterns.  Their presence should give online services cause to pause, assess how consumer and advertising law and regulation applies to them, and consider how to mitigate risk:

• They involve some form of manipulation, deception, nudging or pressurising of users or hiding of material information
• They are typically related to how a website, online user interface or other form of online experience (such as search result, purchase, sign-up or cancellation pages) is designed, presented or operated
• They make it more difficult for consumers to make free online decisions, as consumers' choices are influenced by the behavioural or design choices of the service
• They take advantage of the vulnerabilities, deficiencies, biases, laziness and/or preferences customers exhibit when using websites and online services

Practical examples of dark patterns and risk mitigations

If your intended online practice has some or all of these hallmarks of "dark patterns", it is also worth paying particular attention to whether they fall within the below non-exhaustive list of practices which have been called out as potentially problematic and seek to mitigate the risks.

The first three in the list are expressly mentioned in the DSA as being potentially covered by the prohibition in the DSA and possibly subject to specific guidelines from the Commission (to the extent they are not already prohibited under the UCPD or GDPR).  The UCPD (implemented in the UK by the Consumer Protection from Unfair Trading Regulations) will capture practices which breach the trader's professional diligence requirements or amount to a misleading or aggressive practice.  The list of always unfair practices in that legislation will also pick up various dark patterns such as bait and switch, creating false urgency and not properly labelling paid-for editorial content.  Seen in this light, a lot of dark patterns will, if they should be regulated at all, already be prohibited under that legislation.