Who: Advertising Standards Authority (ASA)
Where: United Kingdom
When: 24 February 2022
Law stated as at: 10 May 2022
What happened:
The ASA has released guidance to shed light on and define “dark patterns”. The guidance offers consumers assurance that existing law and regulations cover the range of marketing techniques that may be dark patterns, although not all of these would fall within the ASA’s remit.
The ASA defines dark patterns as: “a range of behavioural and design techniques used to influence consumer choice online, in ways that exploit cognitive biases and can be detrimental to the consumer – either economically, or in terms of the use of their personal data. These practices cross the line beyond persuasion – which is an essential feature of advertising, provided that it respects the standards laid out in the Advertising Codes – aiming instead to confuse and coerce“.
In terms of legal requirements, the ASA states that “‘dark patterns’ encompass a range of misleading advertising practices that have long been regulated under the CAP Code, and some of which reflect practices that are banned in all circumstances under consumer protection law“.
The guidance runs through three examples of dark patterns that are within its remit: “drip-pricing” (that is, adding costs during the check-out process), “ad labelling” (for example, failing to label paid-for search results or disguising ads) and “subscription traps” (for example, the terms after a free trial and requirements to participate).
Why this matters:
The ASA’s guidance is useful for businesses that have been struggling to understand and explain the meaning of dark patterns to its technical teams building its products and services. The guidance has also been published in time for other regulatory developments as dark patterns become a focus for other regulators and policymakers.
In particular, the UK government’s recent announcement on its consultation on reforming competition and consumer policy expressly states that it is seeking further evidence “on how best to help regulators stamp out other dodgy tactics used to dupe online shoppers. These include ‘dark patterns’ that manipulate consumers into spending more than they wanted to, and ‘sludges’ – negative nudges such as when businesses add on extra charges for a product before checkout, on top of the advertised price“. The European Data Protection Board has also drafted guidelines on ‘Dark patterns in social media platform interfaces: How to recognise and avoid them’, which it is currently consulting on.
