On 30 November 2022, the CMA announced the start of an investigation into whether the Emma Sleep Group’s use of online urgency claims breaches consumer protection law . The investigation marks the start of a new programme of enforcement work targeting the harmful use of online choice architecture, also known as dark patterns. The CMA notes that the ASA ruled against the Emma Sleep group on 16 March 2022 for misleading reference pricing and a misleading flash sale countdown clock.

What are dark patterns? How do you identify dark patterns? How are they regulated? How do you guard against dark patterns?

These are questions posed by companies advertising on digital platforms. Digital advertisers have to comply with numerous regulations, Advertising Codes and rules which are regulated by the Advertising Standards Authority, Committee of Advertising Practice and the Competition and Markets Authority (“CMA”).

The CMA focuses on enforcing legislation in cases where there is likely to be widespread consumer detriment and often investigates particular industry sectors. Their emphasis is to protect consumers to ensure they have been provided with fair deals when paying for goods and services. The CMA publishes guidance from time to time to assist businesses in complying with its advertising obligations to the public.

A dark pattern is the idea of using design and choice architecture to trick, coerce or influence consumers to make choices not in their best interest. The design and not the actual words used is what is considered a dark pattern. Common practices are hidden information or false hierarchy which uses brighter colours or larger fonts to either accept something or refuse to unsubscribe. These are known as roach motels where it is easier to subscribe than to unsubscribe. Preselection of favourite options, continuous prompting (the constant appearance of a request for a consumer to take a specific action), emotional steering (placing an emotional spin when unsubscribing or deleting an account, for example a pop up stating that all your friends will miss you if you delete the account) and forced registrations are all forms of dark patterns.

A few years ago, these issues were raised as a legal issue and more recently there has been an increased focus on the problem of companies using dark patterns. An EU funded study based on a mystery shopper exercise found that 97% of EU consumers’ favourite apps and websites had at least one dark pattern leading consumers to make choices that they would not have made otherwise.

The main legislation governing dark patterns is consumer protection legislation in the form of The Consumer Protection from Unfair Trading Regulations 2008. Enforcement so far has been under the general prohibition of unfair commercial practices but there is also potential for enforcement under misleading omission, harassment or undue influence. In relation to data protection, the UK GDPR principles of unfairness by design can be used to enforce infringements. Due to mounting pressure, there are a number of proposals to bring in other types of bans or new guidance or market investigations into this area.

Certain dark patterns have already been banned such as:

• “Bait and switch” practices which are offering products at a specified price without disclosing the grounds for not being able to provide the product, or offering a product but being unable to deliver it within a reasonable time, with the intention of promoting a different product instead.
• Creating urgency by falsely stating the product will only be available for a limited time (or using countdown timers).
• Giving inaccurate information on market conditions or possibility of finding the product with the intention of inducing the consumer to buy the product on less favourable terms.
• Claiming the consumer has won a prize, without awarding the prizes or a reasonable equivalent, or falsely describing the product as free; and
• Making repeated intrusions during normal interactions in order to get the consumer to do or accept something (nagging) which could amount to a persistent and unwanted solicitation.

In this rapidly developing area, there are already discussions regarding the next generation of dark patterns where dark patterns are highly personalised to a specific individual or a vulnerable consumer group. The metaverse could also open a new area which could possibly lead to a new type of dark pattern which would look completely different to the patterns already identified. It is important for businesses to remain up to date on the rules and guidance in order to ensure that they remain compliant.

How can we help?

Our Commercial team are on hand to support you, including advising on compliance with marketing legislation. You can contact us by calling us on 01276 686 222 or by emailing mark.chapman@herrington-carmichael.com or Brendon.lesar@hc.law