Dark Patterns: Is Your Website About to Become a Legal Risk?

The New Rules on Online Design, Consumer Trust and Digital Marketing

You know the story. You are browsing online when a flashing countdown timer warns that a sale is about to end, only two items remain in stock and dozens of people are apparently looking at the very same product. Faced with what feels like a now-or-never decision, you click “Buy Now” before someone else beats you to it.

Then, a day later, you return to the website. The timer has magically reset, there are still only two items left and those mysterious shoppers seem as active as ever. Sound familiar? Most of us have experienced these tactics. They may not always be outright lies, but they are often carefully designed to steer our decisions. Regulators have a name for them: “dark patterns” — and they are increasingly in the legal spotlight.

Take another scenario, maybe a website displaying messages such as “25 people are looking at this item right now” or “Only two left in stock”, when neither statement is actually true?

Many consumers would describe these practices as manipulative. Regulators increasingly have a name for them: “dark patterns”.

And while many businesses assume these issues only affect online retailers and technology companies, the reality is much broader.

A law firm website could potentially create a misleading impression that a person is a practising lawyer when they are not. A consultancy might create the appearance of widespread client endorsements that do not exist. A professional services business might use urgency messaging that suggests a service is about to become unavailable when no such limitation exists. A training provider might make it significantly easier to sign up for a service than to cancel it.

In each case, the issue is not simply what is being said. It is how the online environment is designed to influence decision-making.

That distinction is becoming increasingly important.

Why Are Regulators Suddenly Interested in Website Design?

Historically, Australian consumer law has focused on representations made by businesses.

If a business made a false claim about a product or service, the law could respond.

The key provisions have long included section 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth), known as the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct, and section 29, which prohibits false or misleading representations about goods and services.

However, regulators around the world are increasingly asking a different question.

What happens when a website does not necessarily make a false statement, but is deliberately designed to manipulate consumer behaviour?

This question sits at the heart of the Federal Government’s proposed reforms targeting unfair trading practices.

Rather than focusing solely on what businesses say, the reforms focus on how businesses influence decisions.

That represents a significant shift.

What Are Dark Patterns?

Dark patterns are online design features that encourage people to make decisions they might not otherwise make.

The term was originally coined by user experience specialist Harry Brignull and has since become a major focus of regulators in Australia, the United Kingdom, the European Union and the United States.

Examples include:

• Artificial countdown timers.
• False scarcity claims.
• Hidden fees revealed only at checkout.
• Pre-ticked consent boxes.
• Making cancellation significantly harder than sign-up.
• Misleading button placement.
• Repeated prompts designed to wear down resistance.
• Manipulative cookie consent banners.
• Subscription models that are difficult to exit.

What makes dark patterns particularly interesting is that they often sit in a legal grey area.

The design may be technically accurate while still creating a misleading overall impression.

The Australian Government’s Proposed Reforms

Treasury has released an Exposure Draft proposing amendments to the Australian Consumer Law to prohibit certain unfair trading practices.

If enacted, the reforms are expected to commence on 1 July 2027.

The proposed reforms focus on three key areas:

1. Dark Patterns

The draft legislation would prohibit conduct that:

• unreasonably manipulates consumers; or
• unreasonably distorts the environment in which consumers make decisions,

where that conduct causes, or is likely to cause, detriment.

This is potentially much broader than traditional misleading conduct provisions.

The focus is not simply on whether a statement is false.

Instead, regulators may examine whether the overall design of a digital environment is engineered to influence consumer behaviour unfairly.

2. Drip Pricing

Drip pricing occurs where additional charges are progressively added during a purchasing process.

Consumers may initially see one price only to discover various fees later in the transaction.

The reforms would require businesses to disclose transaction-based charges much earlier and more prominently.

3. Subscription Traps

Businesses offering subscription services may face new obligations concerning:

• cancellation processes;
• reminder notices;
• renewal notices; and
• free trial conversions.

The reforms are designed to ensure that cancelling a subscription is no more difficult than signing up for one.

Why This Matters Beyond Retail Businesses

Many people assume these reforms only affect large online retailers.

That would be a mistake.

The principles behind dark patterns can apply to almost any online business.

Law firms increasingly use online enquiry forms, lead generation systems, webinars, downloadable resources and automated marketing funnels.

Professional services businesses often rely on online testimonials, reviews, client success stories and authority-building strategies.

Technology providers use onboarding processes and subscription models.

Educational institutions use online enrolment systems.

Medical practices use appointment platforms.

In each case, website design choices influence user behaviour.

The question regulators may increasingly ask is whether those choices are fair.

Existing Laws Already Create Risk

Even before the proposed reforms become law, businesses face significant obligations under existing legislation.

Key provisions include:

• Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), section 18.
• Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), section 29.
• Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), section 34 (misleading conduct concerning the nature of services).
• Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), section 48 (single pricing requirements).

The ACCC has demonstrated a willingness to pursue businesses where overall impressions created by advertising and marketing are misleading.

Relevant Cases

Australian courts have repeatedly emphasised that conduct must be assessed as a whole.

In Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, the High Court examined advertising that prominently displayed headline pricing while important qualifications were less visible. The Court confirmed that the overall impression created by advertising is critical.

In Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196, the Federal Court found that representations made through an online gaming platform breached the Australian Consumer Law.

In Australian Competition and Consumer Commission v Google LLC (2021) 392 ALR 682, the High Court considered representations relating to the collection and use of consumer data, reinforcing the importance of transparency in digital environments.

Although these cases were decided under existing consumer law provisions, they illustrate the increasing scrutiny being applied to online business practices.

What Should Businesses Be Doing Now?

Businesses should not wait until 2027.

Now is the time to review:

• websites;
• apps;
• subscription models;
• online checkout systems;
• cookie consent mechanisms;
• digital marketing campaigns;
• customer onboarding journeys; and
• cancellation procedures.

Ask yourself:

Would a regulator regard the process as genuinely transparent?

Could a consumer reasonably feel pressured, manipulated or misled?

Are fees disclosed clearly from the outset?

Can customers easily cancel services?

Are urgency messages supported by evidence?

Are reviews and testimonials authentic and verifiable?

The answers may reveal compliance risks that are currently hidden in plain sight.

What Does This Mean for the Future?

The proposed reforms may signal something much bigger than a new set of consumer protection rules.

Traditionally, internet regulation focused on content.

Regulators asked whether something published online was false, defamatory, infringing or unlawful.

Increasingly, however, governments are focusing on architecture.

The question is no longer simply what appears online.

It is how online environments are designed.

That shift has profound implications for businesses, marketers, software developers, platform operators and professional service providers.

The design of a website may soon attract the same level of legal scrutiny as the words appearing on it.

How Sharon Givoni Consulting Can Help

At Sharon Givoni Consulting, we advise businesses on the intersection of intellectual property law, consumer law, technology law, online marketing and regulatory compliance.

We assist with website reviews, advertising and marketing compliance, online terms and conditions, subscription models, digital content, intellectual property protection, consumer law compliance and risk management strategies.

As regulators increasingly focus on how digital environments influence consumer behaviour, obtaining legal advice before problems arise may be one of the best investments a business can make.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.