Discovering Dark Patterns on the Web and How To Stay Compliant Around Them

In this week’s podcast episode, Gemma Boore, a Senior Associate at Harris Hagan, discusses dark patterns and their impact on consumer decisions. Dark patterns refer to the design and structure of websites that encourage users to make certain choices, often not in their best interests. The use of dark patterns can breach consumer protection, data protection, and competition laws. The UK Information Commissioner’s Office (ICO) and the Competition and Markets Authority (CMA) have published a joint position paper on harmful designing in digital markets, highlighting the potential harm caused by dark patterns. The ICO has also written to top websites in the UK, urging them to change their practices. It is important for marketers to be aware of these issues and take steps to ensure compliance.
Listen in here for all of the insights….

 
Online Choice Architecture
Lee-Ann kicks off the conversation by asking Gemma to talk about Online Choice Architecture – what it is and what you need to be doing about it.
Gemma explains, “So, it’s essentially the way that information is presented and how choices are structured online. It very often includes buttons on websites that lead you to do something that is or isn’t in the interests of the person that’s running the website. That might be subscribing for a service, consenting to marketing, or purchasing a product, and it’s been shown to very heavily influence market outcomes and the decisions that consumers make.
“What regulators have been interested in over the course of the last few years is whether websites are doing this and if they are, whether they’re using it in a way that’s fair to consumers and complies with consumer protection laws and competition laws in their various jurisdictions, or in fact, whether it’s being used in a way that encourages the consumers to take an action that doesn’t align with their best interests or preferences.”
 
Changes for 2025
Lee-Ann says that, “One of the things that we spoke about when we were talking about pulling this podcast together was looking at, or telling, brands that they need to be looking at alternatives to cookie targeted advertising because there are going to be some big changes happening in 2025. How do we still get personalisation into our targeting and reach customers that we want to be engaging with?”
Gemma replies, “We haven’t got absolute confirmation that this is completely compliant from the ICO at the moment, but it is an area that they’re looking into. That point about contextual advertising, which is when you target your adverts based on the kind of page app or content that’s being consumed by the person that you’re interacting with, without the placement of cookies, is a really interesting area that I think does have the potential to be used going forward for personalised advertising. Another really interesting one that I just mentioned as well is subscription models. This is where you encourage people to sign up, to tell you their preferences directly and tell you what they want to receive voluntarily.”
 
Other Examples of Dark Patterns
Confirm shaming   The term “confirm shaming” refers to the practice of pressuring or shaming someone into doing something by making them feel guilty or embarrassed for not doing it. This can be done by using language that clearly suggests that there is a “good” and “bad” choice, and in more extreme cases that the user is morally wrong or socially unacceptable for not taking a particular action.
Biased framing  “Biased framing” refers to the practice of presenting choices in a way that emphasises the supposed benefits or positive outcomes of a particular option, in order to make it more appealing to the user (“positive framing”). It can also be used to emphasise the supposed risks or negative consequences of a particular option to discourage a user from selecting it (“negative framing”).
Bundled consent  “Bundled consent” involves asking the user to consent to the use of their personal information for multiple separate purposes or processing activities via a single consent option. This makes it harder for users to exercise granular control over what they do and don’t wish their personal information to be used for.
Default settings   When designing “default settings”, companies apply a predefined choice that the user must take active steps to change. This can include default settings (including privacy or security features), default choices (such as automatically selected add-ons or pre-ticked boxes), default brands (like the browsers or other apps that come pre-installed with electronic devices) or automatic renewal of subscriptions by default. Defaults are one of the strongest and most reliable practices that influence user behaviour. They are effective – and also concerning – for a number of reasons: (1) they require less effort than making an active choice. They leverage users’ status quo bias to do nothing or maintain a current/previous decision, which means that users who are in a hurry, not interested, or who are more focussed on other factors are more likely to stick with a default than to change it; (2) a default might imply endorsement or a recommendation by the company, or that most users have chosen it; and (3) defaults may lead users to act as if they have already chosen the default option (called the “endowment effect”) and, consequently, they use the default as a reference point to construct their preferences.
 
Further Reading
You can read an article that Gemma has written, titled: Is the cookie finally crumbling?  ICO caution to UK websites on harmful online choice architecture by clicking here.
Be sure to take a look at this article , published by Harris Hagan, on the Gambling Commission’s response to its recent consultation. This explains the changes it will be making to direct marketing rules for gambling advertising, which will come into force on 17 January 2025.
 
Listen to find out more about:

How the use of dark patterns can breach consumer protection, data protection, and competition laws. 
Why Marketers should review their websites and email marketing techniques to identify any dark patterns and consider alternative options that are more compliant and protect consumer interests.
Understanding dark patterns and their impact on consumer decisions

 
Key segments of this podcast and where you can tune in to go direct: 
[07:19] Regulatory Focus on Dark Patterns
[13:58] Steps for Marketers to Ensure Compliance
[27:55] Immediate Actions for Advertisers and Affiliates
 
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