Dark Patterns: User interfaces that make consumers buy and buy more. What are the laws and are dark patterns illegal?
Sharon Givoni Consulting Consumer Law, Intellectual Property, Internet Law
Have you ever been in a situation where you are buying things online and find it really easy to sign up but a real challenge to get out of it? Maybe an online subscription service for example that makes it difficult for users to cancel?
Other examples of dark patterns that internet users may come across include:
- Misleading buttons: Websites may use buttons that are designed to look like they will take the user to one page, but actually take them to another page, such as a sign-up page.
- Forced action: Websites may use pop-up windows that require users to take an action, such as agreeing to terms and conditions, before they can access the content they want to see.
- Hidden costs: Websites may use fine print or small text to hide additional costs or fees, such as shipping and handling fees, that will be added to the user’s purchase.
- Pre-checked boxes: Websites may use pre-checked boxes to opt users into additional services or subscriptions, such as email newsletters, without their explicit consent.
- Confusing language: Websites may use complex or confusing language to make it difficult for users to understand their rights and options, such as in terms and conditions or privacy policies.
- Misdirection: Websites may use images or language to mislead users into thinking they are clicking on one thing, when they are actually clicking on something else.
- Bait and switch: Websites may use a low price or special offer to entice users to make a purchase, only to switch the offer or increase the price once the user has committed to the purchase.
So, in short: Dark patterns are deceptive user interfaces designed to manipulate users into taking actions that they may not have otherwise chosen to do.
Why are they “Dark”?
The term “dark patterns” was coined by researcher Harry Brignull in 2010.
The term “dark” is used because these patterns are often hidden or obscured, making them difficult for users to detect and understand.
Dark patterns are commonly used in the digital world, particularly in the areas of data protection and privacy. For example, a website may use a dark pattern to trick users into giving away more personal information than they intended, or to make it difficult for users to opt out of data collection. These practices can be particularly problematic in the context of data protection and privacy laws.
Are they legal?
You might be surprised to hear that in Australia, dark patterns are not automatically illegal. But they can be.
Privacy law
The Privacy Act 1988 sets out strict rules around the collection, use, and storage of personal information. This includes a requirement that individuals must be informed of their rights and the information that is being collected, and must give informed consent for their personal information to be collected.
While the Act does not apply to all businesses, it can be illegal for businesses to use dark patterns to deceive users into giving away personal information or to make it difficult for users to opt out.
Consumer Law regulated by the ACCC
The Australian Consumer Law (ACL) prohibits businesses from engaging in misleading or deceptive conduct in trade or commerce.
This means that businesses cannot make false or misleading representations to consumers, or use practices that are likely to mislead or deceive consumers. Dark patterns are a form of manipulative design that can fall under this category of prohibited conduct.
Examples on point
For example, using misleading buttons or hidden costs would be considered as a violation of the ACL as it misleads the consumer in making a purchase.
Similarly, using confusing language in terms and conditions or privacy policies can also be considered as a violation of the ACL as it misleads consumers into giving away personal information without fully understanding their rights.
Actions to date by the ACCC – Be careful or this could be you!
The Australian Competition and Consumer Commission (ACCC) which is responsible for enforcing the ACL has taken a number of actions to address the use of dark patterns in the marketplace.
For example, in 2019, the ACCC launched an investigation into the use of dark patterns by online ticket resellers.
This investigation led to the ACCC issuing formal warnings to several companies and taking legal action against one company for engaging in misleading conduct.
The ACCC also released a guide on “Online Platforms and the Australian Consumer Law” in 2019 which outlined the legal requirements for online platforms in relation to consumer protection and provided guidance on how to avoid engaging in misleading or deceptive conduct. The guide mentions that the use of dark patterns can be considered a violation of the ACL.
If you operate a website you must ask yourself: Am I being transparent and clear in my conduct?
ACCC complaints
The ACCC also has a dedicated section on its website for reporting scams, including those involving dark patterns. Consumers can report these practices to the ACCC, which can then investigate and take enforcement action if necessary.
What does this mean for you?
In conclusion, dark patterns are considered as a violation of the Australian Consumer Law and the ACCC is responsible for enforcing this law. The ACCC has taken a number of actions to address the use of dark patterns in the marketplace, including investigations, legal action and releasing guidelines for businesses to follow. Consumers can also report these practices to the ACCC for investigation and redressal.
From a privacy law perspective, it can be illegal for businesses to use dark patterns to deceive users into giving away personal information or to make it difficult for users to opt out.
Sharon Givoni Consulting do a lot of work in this area. If you need legal advice to ensure that you stay within the boundaries of the law or want to reduce your risk legally, please contact us today.
Article by Sharon Givoni, Principal Solicitor
Sharon Givoni Consulting
www.sharongivoni.com.au
www.owningit.com.au