In this week's podcast, Gemma Boor, Senior Associate at Harris Hagan, talks about dark patterns and their impact on consumer decision-making. Dark patterns refer to website design and structure that encourages certain choices, often not in the best interest of the user. The use of dark patterns can breach consumer protection, data protection and competition law. The UK Information Commissioner's Office (ICO) and the Competition and Markets Authority (CMA) have published a joint position statement: A report on harmful design in digital markets has highlighted the potential harm that dark patterns can cause. The ICO has also written to top UK websites urging them to change their practices. It is important that marketers are aware of these issues and take steps to ensure compliance.
Listen here for all the insights…
Online Selection Architecture
Lee-Ann starts the conversation by asking Gemma to talk about Online Choice Architecture, what it is, and what needs to be done about it.
Gemma explains: “So it’s essentially about how information is presented to you online and how your options are structured. IWebsites frequently contain buttons that trigger calls to action that may or may not benefit the website owner – to sign up for a service, opt in to marketing, buy a product, and many other actions that have been shown to have a huge impact on market outcomes and consumer decision-making.
“Over the last few years, regulators have been concerned about whether websites are engaging in these practices and, if so, whether they are doing so in a way that is fair to consumers and complies with the consumer protection and competition laws of their respective jurisdictions, or whether they are using them in a way that actually encourages consumers to act in a way that is not in their best interests or preferences.”
Changes towards 2025
LeAnne said, “One of the things we talked about in putting this podcast together was telling brands that they need to look at alternatives to cookie targeted advertising because there's going to be a big change in 2025. How can you bring personalization into your targeting and reach the customers you want to engage with?”
Gemma replies: “At present we haven't received any confirmation from the ICO that this is fully compliant, but it is an area they are looking into. Contextual advertising – targeting adverts to the person you're interacting with based on the page or app or type of content they're viewing, without placing a cookie – is a really interesting area and I think it has the potential to be used for personalised advertising in the future. Another thing that is really interesting, as I mentioned earlier, is subscription models, where you encourage people to sign up, tell them your preferences directly, and voluntarily tell them what they would like to receive.”
More examples of dark patterns
Acknowledge the shame The term “blame by confirmation” refers to the act of pressuring or blaming someone to do something by making them feel guilty or ashamed for not doing it. This can be done by using language that clearly suggests there are “good” and “bad” choices. In more extreme cases, it can imply that not taking a certain action is morally wrong or socially unacceptable.
Biased framing “Biased framing” refers to presenting choices by highlighting the perceived benefits or positive outcomes of a particular option to make it appear more attractive to users (“positive framing”), or by highlighting the perceived risks or negative outcomes of a particular option to discourage users from choosing that option (“negative framing”).
Bundle Agreement “Bundled consent” is when you ask users to consent to the use of their personal information for multiple separate purposes or processing activities through a single consent option, giving users less granular control over what their personal information will and will not be used for.
Default Settings When designing “default preferences,” companies apply predefined choices that users must take active steps to change. This can include default settings (including privacy and security features), default choices (such as automatically selected add-ons or pre-checked boxes), default brands (such as browsers and other apps pre-installed on electronic devices), or auto-renewing subscriptions by default. Defaults are one of the most powerful and reliable ways to influence user behavior. There are several reasons why defaults are effective—and concerning: (1) they require less effort than making active choices. Defaults exploit users’ status quo bias to do nothing or maintain their current/previous decision. That is, users who are in a hurry, uninterested, or focused on other factors are more likely to stick with the default than to change it. (2) Defaults may imply endorsement or recommendation by the company, or that most users have chosen it. (3) Defaults can lead users to act as if they have already chosen the default choice (known as the “endowment effect”), resulting in users using the default as a reference point for building their preferences.
References
Gemma wrote an article titled “IWill the cookie finally crumble? ICO warns UK websites about harmful online choice architecture Click here here.
Please take a look This article An article published by Harris Hargan on the Gambling Commission's response to the recent consultation. Learn about the changes to direct marketing regulations for gambling advertising that come into effect on 17 January 2025.
Listen in to find out more about:
- Why the use of dark patterns may breach consumer protection, data protection and competition law.
- Why marketers should review their websites and email marketing techniques to identify dark patterns and consider alternative options to be more compliant and protect consumer interests.
- Understanding dark patterns and their impact on consumer decision making
Key parts of this podcast and where you can listen directly:
[07:19] Regulatory focus on dark patterns
[13:58] Steps marketers can take to ensure compliance
[27:55] Instant response for advertisers and affiliates
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