Following the recent accusations that a leading US retailer has used ‘dark patterns’ to encourage subscriptions, it’s important to flag some common sales tactics that fall in this category.

What are ‘dark patterns’?

‘Dark patterns’ is a term coined by user experience (UX) specialist Harry Brignall which refers to interfaces that ‘trick’, ‘encourage’ or ‘compel’ users into taking certain actions. Some of these may have been employed by organisations as marketing strategies. UK retailers should be wary of these practices, too. Using them could mean that they could be in breach of UK legislation that protects customers from this type of activity. Like GDPR and the use of personal data, people will become more aware of how organisations interact with them online and whether their consumer rights and data are being protected.

Here are some of the common dark patterns to avoid using and, if you’re operating in the UK, what legislation you could fall foul of if you do.

The roach model – easy to get in, hard to get out

Websites have been known to use a ‘roach model’ which is an easy path to follow on a website that becomes difficult to get out of. This can be in the form of encouraging subscriptions to newsletters easily but making it more difficult to pause, unsubscribe or cancel.

Turning up the pressure with countdowns

Countdown clocks, repeated notifications encouraging users to do something in the site’s interest or ‘low stock’ alert that might influence purchases. An example of an organisation getting called out by a regulator for this is ‘Emma Sleep’ and ASA’s decision relating to the use of a ‘flash sale’ timer which breached the UK Code of Non-broadcast Advertising and Direct and Promotional Marketing.

Hidden costs

In this instance the price stipulated when viewing an item is much lower than the price when

you get to checkout. This is because at the final stage additional costs have been added on

top, such as tax and delivery. Companies should always make clear the costs to customers that are additional to the item price (e.g., delivery will be added at checkout) from the outset.

Surprise basket additions

Websites have been found to have snuck additional items into users’ baskets which they only realise at the checkout – or later.

Look over there!

Arguably the most simple and universal trick when it comes to dark patterns: a website will

focus attention on one thing to distract attention from another. For example, a user feeling inclined to accept ‘all cookies’ due to flashy bright visuals. The sweeping exercise identified that there were 70 websites found to be “hiding information or making it less visible for consumers”.

What regulations are in place to protect consumers?

United Kingdom

Under current UK law there are no laws that specifically reference dark patterns. However certain consumer laws could be breached indirectly, including:

  • UK GDPR and DPA 2018 (in force) – data protection laws are intrinsically interlinked to the use of dark patterns where personal data is involved, for example, where dark patterns are potentially used to capture users’ consent. Core data protection principles, like data protection by design, are key when considering the impact of technologies and whether they are capable of manipulating individuals.
  • ICO’s Guidance – specific guidance on ‘nudge techniques’, including in relation to children and the possibility of using ‘pro-privacy nudges’ where appropriate.
  • Consumer Rights Act 2015 (in force) – where dark patterns are principally used to encourage/make consumers enter into contracts for goods and / or services, they are at risk of falling foul of the CRA 2015.
  • Consumer Protection from Unfair Trading Regulations 2008 (in force) – again, these apply where the actions taken by the organisation are likely to result in an unfair outcome for the individual. These will apply when the aim of the dark pattern is to influence the customer’s financial decisions in some way (e.g., sneak into basket, hidden costs).
  • Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (in force) – these provide customers with a cooling off period of 14 days after purchase. The CMA is taking a hard-line approach to dark patterns, including conducting the Online Rip-Off Tip-Off campaigns and launching its first investigation into dark patterns. These actions are likely to be the starting point for further investigation into and enforcement against dark patterns in the UK.

Regulatory bodies are taking action on the use of dark patterns globally. This trend is likely to continue as further guidance is published and laws come into force. Adopting a ‘privacy by design’ approach from the outset of projects, with a particular focus on the end-user’s journey is likely to be key to avoiding regulatory investigations and penalties.

For more information on UK, EU and US regulation of dark patterns, a guide from Womble Bond Dickinson’s legal experts is available to download here.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.