Dark patterns

Summary

The ASA has banned Nike and Sky adverts, on the basis they use so called “dark patterns”. Dark patterns are a range of techniques which cross the line from legitimate advertising techniques to ones which unlawfully nudge consumers into making choices not in their best interests. These decisions come as the ASA joins the CMA in undertaking wider proactive investigations into online choice architecture that amount to unlawful dark patterns.

The EU is also concerned about these issues and these most recent decisions follow the explicit prohibition of the use of dark patterns in the EU’s Digital Services Act, which came into force for businesses not classified as “very large” under the legislation in February. 

What are dark patterns?

Broadly, dark patterns cover a range of techniques which seek to deceive, coerce or manipulate consumers into making decisions which are no longer free or informed. Examples of dark patterns include drip pricing (only disclosing common charges late on in a checkout process), subscription traps or roach motels (such as not making clear key conditions, for example auto renewal following a free trial), false time as an urgency claims (such as suggesting a discount will end in an hour, only for the clock to reset), or the application of social pressure and other techniques to get consumers to consent to the processing of their personal data.  

Why is it important to be aware of them?

Dark patterns could put your organisation in breach of a number of different obligations including those of the CAP Code (the rule book for non-broadcast advertisements, sales promotions and direct marketing communications), consumer law including the forthcoming Digital Markets Consumer and Competition Act (DMCC) and the GDPR. The practical consequences of enforcement can be wide ranging, from content being banned (as is the case in this instance) to fines under GDPR and DMCC.  DMCC fines are up to 10% of worldwide turnover.

UK businesses may also need to consider EU laws, such as the  Digital Services Act, even where an organisation does not have an EU "establishment". The Digital Services Act applies where the organisation is broadly offering services to recipients located in the EU. While there are nuances around the exact application of the Digital Services Act, as with the EU GDPR, businesses whose operations are located in the UK, but which operate online, cannot rest on their laurels when considering if they need to comply with its provisions.      

Current developments

The ASA has issued two bans on adverts run by Sky and Nike.

In the case of Sky, when selecting entertainment subscriptions, consumers automatically had short free subscriptions included, which auto renewed after a limited period with a recurring subscription charge. The information detailing the free trial and subsequent auto renewal was not in the advert itself and the information was only surfaced on a subsequent web page in small writing. Due to absence of information in the original ad about the free trial and the size, clarity of font and positioning of these additional conditions, the ad was found to be misleading.

In the case of Nike, an advert suggested that trainers, displayed with the ad, were only £26. When consumers clicked through to the website, the shoes advertised were actually intended for older children and were available only in limited adult sizes. This was found to be misleading, on the basis the ad led individuals to expect discounted trainers available in a range of adult sizes.

These bans are part of a wider investigation by the ASA into online choice architecture, as noted above, and are clearly linked to the joint push by the CMA and ICO (the UKs competition and data regulators) last year against the use of dark patterns. With the passing into force of the DMCC the CMA will have additional enforcement powers in relation to new investigations into dark patterns and the CMA has previously made it clear that it does intend to launch more investigations into these issues. Previously its investigations had focused on the use of timers and urgency claims. These rulings by the ASA suggest that subscriptions might be the focus going forward.

Further, the EU’s focus also illustrates that the need for organisations to ensure their online operations avoid crossing the line from persuading to utilising dark patterns is becoming more urgent in the EU as well.  

How can we help

Dark patterns encompass a range of different legislative and regulatory areas including consumer law, data protection law and the CAP Code. Mills & Reeve’s specialist team is on hand to assist you at every stage of your journey, from the initial ad or website design and planning stage through to ASA and ICO investigations.