Spot dark patterns to avoid unwanted online purchases

One of my humble ambitions in life is not to generate more cardboard waste every fortnight than will fit in our recycling bin. I rarely succeed. The main culprit is my partner’s online shopping habits. I collapse the boxes and squeeze them into the bin with the precision of a Tetris master, but we are still usually left with a surplus. Since my partner has not been deterred by the plaintive tone I use to announce parcel deliveries, I tried asking a popular generative AI engine to find me a persuasive quote about the perils of materialism: ‘be on your guard against all kinds of greed, for life does not consist in an abundance of possessions.’ A fine sentiment, my partner agreed, but the parcels keep coming. 
 
My partner is not the only one with this problem. Nor am I the only person concerned about it. Some websites and app use so called ‘dark patterns’ such as pressure selling and subscription traps to "nudge" consumers into making choices not in their best interests.  For example unnecessary impulse buys, or making it hard to unsubscribe from things that we don’t want any more. 
 
Like me, the Competition and Markets Authority (CMA) is concerned that dark patterns (also referred to as online choice architecture) may sometimes breach consumer protection law. In October this year, they issued court proceedings against a group of companies that sell mattresses – collectively known as Emma Sleep for unlawful use of online choice architecture in breach of consumer law. The CMA says that Emma Sleep has failed to provide sufficient assurances that it will stop using the likes of countdown timers and ‘in high demand’ messages to create a false sense of urgency – leading some consumers to make purchases they might not otherwise have made. 
 
Currently, the CMA’s enforcement activities in this space are limited to asking companies to enter undertakings to make changes to their practices. If they fail to make the necessary changes, the CMA can commence criminal prosecution, but this is limited by the fact that (a) the CMA has to resort to court action to establish a breach of consumer law and (b) it cannot levy fines. From April 2025, that will change, as key sections of the Digital Markets, Competition and Consumers Act come into force. This legislation empowers the CMA to decide when consumer law has been broken without first taking a case to court and to impose fines of £300,000, or up to 10% of global annual turnover (whichever is greater). This means it will be much easier for the CMA to enforce against companies for breach of consumer protection law in relation to dark patterns that harm consumers. For more on dark patterns internationally see our article on the latest EU developments. If you are concerned that your company’s online choice architecture might fall foul of the CMA, please get in touch with Mills & Reeve’s regulatory lawyers, who will be able to help you draw the line between clever sales strategy and breach of consumer law. 
 
In the meantime, I remain in need of an alternative cardboard box disposal system. I ventured out under cover of darkness on last Wednesday to deposit boxes in the neighbour’s blue bin. Unfortunately theirs was full too. Any ideas?

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