Dark patterns

Dark patterns refer to various methods used to design the structure of websites, software, mobile applications, other user interfaces or service paths to deceive or otherwise cause a consumer to do something that they were not originally supposed to do. The aim is to steer the consumer’s choices so that they make decisions that would benefit the company but are often unfavourable to the consumer. Some dark patterns are always clearly illegal, while the assessment of legality in some instances requires case-by-case consideration. 

 

How can one identify dark patterns?

There are many different forms of dark patterns. Common to all of them is the attempt to influence the consumer’s choices by exploiting human emotional states and/or systematic weaknesses in information processing that distort thinking and can lead to erroneous assessments. Some consumer groups, such as children and elderly people, may be particularly vulnerable to the effects of dark patterns.

To better avoid the effects of dark patterns yourself, consider the following before making online purchases and other decisions:

  • Do I understand the type of choice I am making?
  • Is the company attempting to guide my choices?
  • Am I doing what I had originally planned to do?

Types and examples of dark patterns

The sample list below of different types of dark patterns is not exhaustive. Any other practice (design solution) can be a dark pattern if it aims to persuade the consumer to do something that they would not have done without the practice. It is also common to combine different dark patterns. The more dark patterns that are used on websites, for example, the more the consumer’s decision-making is influenced, and the more likely it is to constitute an unlawful unfair practice.

  • The company has made choices in advance on behalf of the consumer to benefit the company. Such choices often impose additional charges on the consumer, for example.

    Example 1: a checkbox has been pre-checked on behalf of the consumer, resulting in the purchase of an additional service.

    Example 2: for monthly subscriptions with different options, a more expensive, above-basic subscription option is pre-selected.

    Example 3: the subscription of a service will continue automatically after the free trial period, unless the consumer terminates the service.

    A company may not use premade choices that incur additional costs for the consumer. The consumer’s explicit consent to the additional costs must be sought. The consumer is not obliged to pay additional costs based on pre-selected options that they should have specifically rejected in order to avoid the costs. Neither may the consumer be supplied with  products not solicited by the consumer and be required to pay, return the product, keep the product or other measure.

    A company may not provide a consumer with false or misleading information on, for example, the necessity, content, price, duration or termination of a service, if the information is likely to lead the consumer to make a purchase or other decision that they would not otherwise have made.

    Before concluding a contract, the consumer must be clearly and comprehensibly informed, for example, of any right to cancel or terminate the contract. A company may also be obliged to provide the consumer with other information necessary for making a purchase decision or other decision about a product.

    A company must present such material information to the consumer in a clear, comprehensible and timely manner (taking into account the limitations of the media used). If this is not done and the procedure is likely to lead to the consumer making a decision that they would not have made with sufficient information, it is a prohibited unfair practice.

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  • It is easy for the consumer to take a measure but difficult to undo it.

    Example 1: the consumer can easily place an order on a company’s website, but it is not possible to cancel the order online; instead, the consumer must call and queue for the company’s customer service.

    Example 2: terminating a service requires going through a difficult and time-consuming path of options in the company’s online service.

    Before concluding a contract, the consumer must be clearly and comprehensibly informed, for example, of any right to cancel or terminate the contract and, in distance selling, the terms, deadlines and procedures concerning the exercise of the right of withdrawal.

    A company may not provide a consumer with false or misleading information on, for example, the consumer’s rights or fail to provide material information necessary for making a decision on a product. A company’s contractual terms or practices that hinder the exercise of the consumer’s statutory rights, for example to cancel an order, may be unfair and thus prohibited. If a company complicates a consumer’s exercising of their contractual or statutory rights by harassing, coercing or otherwise exerting pressure on the consumer, and if this is likely to lead the consumer to make a decision that they would not otherwise have made (e.g., to remain in the contract instead of terminating it), it may also be a prohibited aggressive practice.

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  • The total price of the purchase is not clearly presented in advance, but different costs, such as service charges and handling costs, are added to the price during the purchase process, which increases the total price.

    For example, the consumer has made progress in the online shopping cart to the finalisation stage of the order, at which time a separate service fee has suddenly been added to the total amount of the purchases.

    The Consumer Protection Act provides for the indication of prices. Businesses are obliged to indicate the total price and taxes of products in marketing and/or before concluding the contract. Splitting the price into components so that, at different stages of the purchase process, costs that the consumer cannot avoid are added to the first price, make it difficult to understand the total price and compare prices, likely misleading the consumer about the price.

    Providing false or misleading information on the price of a product or the grounds for its determination is prohibited. In addition, the total price and the basis for determining it are material information for the consumer’s decision-making, which must be provided in a clear, comprehensible and timely manner. If costs are added only later during the purchase process, this is likely to mislead the consumer about the total price. All costs should be indicated as soon as it is possible to do so.

    In addition, costs for any additional services not included in the price declared for the product must be explicitly agreed by the consumer in order to be borne by the consumer.

     

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  • The consumer is urged and pressured by emphasising the feeling that they should act immediately in order to take advantage of a good opportunity.

    Example 1: an online store has a timer that emphasises that the offer is only valid for a limited period of time and shows the real-time expiration.

    Example 2: the product page displays notifications such as “Hurry! There’s only one left!” or “Soon running out!”

    Unfounded claims that a product is available or available on particular terms for a limited period of time are always unfair and prohibited. This applies, for example, to fake timers indicating the validity of offers, which, after running out, restart from the beginning or whose expiry does not affect the validity of the offer, etc. Also always unfair are unfounded claims concerning a clearance or moving sale and false information about the market situation or the possibility of finding a product elsewhere, so that the consumer would buy the product on more unfavourable terms.

    Other situations may also involve an unfair practice prohibited by the Consumer Protection Act. For example, a consumer may not be provided with false or misleading information on, for example, the existence, availability or price of a product if the information is likely to lead the consumer to make a purchase or other decision that they would not otherwise have made. The company must also provide the consumer with the material information necessary for making a purchase or other decision.

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  • The ad is designed to look like something other than an ad.

    For example, a button that looks like a standard application button is an ad link that, when clicked, takes the consumer unwillingly to the advertiser’s website.

    Advertising must be identifiable, and commercial messages may not be hidden in other communication. All marketing must clearly indicate its commercial purpose and on whose behalf it is being carried out. If this is not the case, it is a prohibited unfair practice. In addition, it is always prohibited to use editorial media content to promote the sale of products  where a trader has paid for the promotion but it is not clearly stated in the content or by images or sounds clearly identifiable by the consumer. The same applies to the provision of search results to a consumer’s online search without clearly informing the consumer of the paid advertisement or a payment whose specific purpose is to rank products higher in the search results.

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  • Additional products or services are automatically added to the consumer’s shopping cart during the purchase process.

    For example, the consumer has added only a smartphone to their cart, but a smartphone screen protector has also been automatically added to the cart.

    A company may not take automatic measures that incur additional costs for the consumer. The consumer’s explicit consent to the additional costs must be sought. The consumer is not obliged to pay additional costs based on automatic choices made by the trader that they would have to have specifically rejected in order to avoid the costs. Neither may the consumer be supplied with products not solicited by the consumer and be required to pay, return the product, keep the product or other measure.

     

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  • The company strives to guide the consumer’s behaviour with repeated requests for activities or service interruptions.

    For example, a mobile application provides the consumer with continuous notifications that disrupt or hamper the use of the application to persuade the consumer to accept new terms of use or to obtain another application.

    Nagging can be aggressive and is therefore prohibited if it involves harassment, coercion or other pressure on the consumer, which is likely to result in the consumer making a decision to buy or otherwise make a decision that they would not have made. In addition, persistent and unwanted sales contacts by e-mail or other remote communication are always prohibited.

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  • Information that is important for the consumer’s decision-making is presented in a way that is difficult to perceive, e.g., by using a small font size or colours that are difficult to distinguish, or by presenting information in a place that is difficult to see, such as on a page behind a separate link, in a drop-down menu, or at the bottom of a page. At the same time, other information may be visually emphasised, trying to draw the consumer’s attention to it.

    Example 1: information on a free trial period is presented on a website in large text that is easy to distinguish from the background, but price information and terms following the trial period are presented in poorly distinguishable small print.

    Example 2: order price information can only be displayed by clicking a separate hidden menu.

    Example 3: the main terms and limitations of an advertised campaign are listed on a separate page behind a link.

    The Consumer Protection Act lists the information that companies must provide to consumers in different situations. A company may also be obliged to provide the consumer with the material information for making a purchase decision or other decision about a product. Information (including information that is unfavourable from the company’s perspective) must be presented to the consumer in a clear, comprehensible and timely manner, taking into account the restrictions related to the media used. Hiding information or presenting it too late for the consumer’s decision-making is likely to lead the consumer to make a decision that they would not otherwise have made. It is therefore a prohibited unfair practice. It is also a prohibited unfair practice if the misleading presentation of information is likely to result in the consumer making a purchase or other decision that they would not have made otherwise.

     

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  • Information, selection buttons, menus or selection paths are presented or built in a way that emphasises a choice favoured by the company and guides the consumer to make this choice.

    Example 1: the button leading to subscribing to a newsletter is large and green, but the button for not subscribing is small and grey.

    Example 2: among streaming subscription options, the most expensive one is emphasised by presenting it as a visually highlighted and primary choice.

    A consumer may not be provided with false or misleading information if the information is likely to lead the consumer to make a purchase or other decision about the product that they would not otherwise have made. Such information may concern, for example, the availability, quality and other key characteristics of a product that the consumer needs in order to make a choice between different options. All information essential for the consumer’s decision-making must also be presented in a clear, comprehensible and timely manner. A presentation that emphasises a particular choice at the expense of others may lead to a consumer making a decision about a product with misleading and/or incomplete information, for example on the alternatives available to them. Such steering to a specific choice is unfair and prohibited. Different alternatives must be presented in a way that does not mislead the consumer – preferably in a neutral and balanced manner.

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  • An activity results in something quite different from what it commonly results in and what the consumer can expect.

    For example, clicking a cross at the top corner of a pop-up window does not close the dialog box as usual but instead starts downloading an application.

    A consumer may not be provided with false or misleading information if the information is likely to lead the consumer to make a purchase or other decision about the product that they would not otherwise have made. If a consumer’s refusal results in an opposite effect (e.g., directing an application to download), it may also be a prohibited aggressive practice.

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  • For example, images or words are used to induce an emotional reaction – usually negative – in the consumer, which would guide them to act in a certain way.

    Example 1: an attempt is made to establish a feeling of guilt in a consumer who is stopping the use of a service with the notice “We will be disappointed if you leave us 🙁”.

    Example 2: a ticket is offered with a payable cancellation insurance policy, where the consumer must click “No thank you, I will take the risk” to decline the offer.

    Example 3: a consumer is encouraged to buy a product by overemphasising all the good things they will achieve by buying the product.

    It may be a prohibited unfair practice if false or misleading information is presented to the consumer, such as the necessity of the product or the effects of its use, and if this is likely to lead the consumer to make a purchase or other decision that they would not have made otherwise. It may then also be a question of false hierarchy, which is also a type of dark pattern.

    Unfounded claims about the nature and extent of the risk that a consumer or their family member may face if they do not buy a product are always unfair and prohibited. The same applies to unfounded claims that a trader’s job or livelihood is at risk if the consumer does not buy a product. It is also always prohibited to invoke children with direct requests to buy a product or to persuade a parent or other adult to buy a product. Exploitation of emotional reactions (toying with emotion) may also be unfair if it is aggressive within the meaning of the Consumer Protection Act.

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  • The information provided or the language used is so ambiguous, contradictory or difficult to understand that the consumer understands the matter incorrectly or not at all. The manner in which information is presented may also be so confusing that the consumer cannot find the information they want.

    Example 1: the questions and answers presented to a consumer have been formulated so confusingly that they accidentally give a different answer than they meant.

    Example 2: contract terms and other important information are presented in a language that is so difficult to understand that the consumer does not understand them.

    Example 3: an application menu is so complex that the consumer cannot find the information they are looking for.

    The Consumer Protection Act lists the information that companies must provide to consumers in different situations. A company may also be obliged to provide the consumer with information necessary for making a purchase decision or other decision about a product. A company must present such material information to the consumer in a clear, comprehensible and timely manner (taking into account the limitations of the media used). If this is not done and the procedure is likely to lead to the consumer making a decision that they would not have made with sufficient information, it is a prohibited unfair practice. It is also a prohibited unfair practice if the misleading presentation of information is likely to result in the consumer making a purchase or other decision that they would not have made otherwise.

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