Sophisticated marketing practices have been around since humans first started trading, but it is widely recognized that the opportunities and “pulling power” of unscrupulous or deceptive marketing are overloaded online. As the New York Times put it:

“With the benefit of real-time user data and the ability to quickly change online interfaces, dark models can be far more effective – and evil – than offline tricks. The protections enjoyed by offline consumers, such as cooling off periods after purchasing a car, generally do not apply to online transactions.

Regulators around the world are starting to attack the so-called “dark models”. To give a bit of context, one study found that 1 in 10 e-commerce sites use dark patterns. If you’re puzzled by the somewhat ominous sounding “dark grounds”, you can catch up here – where we discussed what dark grounds are and how the California Consumer Privacy Act was the first step. major legislative against the gloomy schemes. The Australian Competition and Consumer Commission (ACCC) in Australia and the Federal Trade Commission (FTC) in the United States recently joined the fray.

ACCC’s reflection on dark models

On October 28, 2021, as part of its ‘Survey of Digital Platform Services’, ACCC released its third interim report (as part of its five-year review of digital platform services) (Interim report). The interim report focuses on default search settings and choice screens (these are screens that allow users to choose default internet browsers or search engines, rather than having the device choose them automatically. ). The interim report generally concerns the pre-installation of browsers on devices and the default configurations of search engines, as well as the negative effects of these practices on the competition.

For the first time, however, the ACCC also took a critical look at the use of “dark patterns” and proposed that further regulation is needed in this space. The ACCC has defined dark models as those user interface (or UI) elements designed to make it “difficult for users to express their real preferences, or which cause users to take certain actions that may not be in order. their best interest ”.

The ACCC explains how dark models are enabled or implemented by the “architecture of choice” for Internet browsers and search engines, which refers to the design of the user interface that influences user choices. While the choice architecture does not have to be negative – the positive choice architecture can be used to facilitate increased consumer choice and simplify the process of changing default settings – ACCC notes that techniques for The following designs are the most common types of dark patterns used:

  1. Obstruction / friction – where the processes are made more difficult due to the browser discouraging certain actions. This can happen through constant warning signals from a browser, for example, warning a user not to change default settings or install extensions. Another example can be where browsers move important settings (like changing the default search engine) to the bottom of a settings page or hide them in menus, making access to that particular setting more difficult and less intuitive.
  2. Wrong direction – which involves the use of visuals, language and emotion to lead users to a particular choice. A classic example might be pop-ups when using a particular search engine, suggesting that users should consider defaulting to that search engine because it is “faster” or more “secure”.
  3. Tenacious – the use of continuous interruptions or pop-ups unrelated to what users are doing. These could be unwanted pop-ups suggesting that a user changes their search engine or installs a different browser.

At this stage, the ACCC has not proposed any definitive action, but it is exploring some avenues. One suggestion from the ACCC to combat the negative use of dark models is the imposition of a principle-based obligation on platforms, which would force platforms to refrain from using dark models or an architecture of choice. negative. This would force platforms to redesign the user interface of their browsers and moderate the way they bundle services and promote their own services.

Details at this point are scarce, and exactly what such a requirement would entail and how enforcement would work has not been specified. However, the ACCC explicitly notes that it draws inspiration from the UK Competition and Markets Authority (CMA) proposed “Fairness by Design Duty” (To have to), which the CMA recommended to impose on online platforms as part of a code of conduct. Under the code of conduct, platforms would be required to demonstrate compliance with the obligation – for example, by actively monitoring user knowledge levels and conducting experiments to improve the architecture of choice. The ACCC may attempt to replicate a similar and codified law in Australia.

Another suggestion made by the ACCC – and which recognizes that dark schemes are used ubiquitously by online service providers – is to introduce a ban on unfair trading practices. To be fair, this is not the first time that the ACCC has recommended such a ban (see for example its 2019 Digital Platforms Inquiry Final Report), and the introduction of such a ban would have an impact. well beyond grim schemes (and even economics). Nonetheless, the ACCC views the use of dark patterns as an example of a practice that could be countered by the introduction of such a ban.

The FTC’s Steps to Tackle Dark Models

On October 28, 2021, the FTC, which oversees US federal consumer protection laws, released enforcement guidance on a type of dark pattern called a “negative option offering”.

Negative option offers come in various forms, but all share the central feature of a contractual clause whereby the seller can interpret a consumer’s silence or inability to take positive action to reject a good or a service or to cancel the agreement as an acceptance or continued acceptance of the offer. We’ve all seen “free trial marketing” which offers consumers the option of receiving goods or services for free (or at a low price) for a trial period. After the trial period, sellers can automatically start charging fees (or higher fees) unless consumers cancel or return the goods or services.

While the FTC’s enforcement guideline covers telemarketing and postal mail marketing, it focuses on negative options online. Without saying that negative options are illegal per se, the FTC sets high barriers around three requirements: disclosure, consent, and revocation.

Regarding disclosure, the FTC requires that the visual disclosure of the negative bid option, by size, contrast, location, duration of appearance and other characteristics, be distinguished from any accompanying text or other visual elements so that it is easily noticed, read and understood. No relegation to the fine print!

The negative option characteristic itself must appear immediately next to the means of recording the consumer’s consent for the negative option characteristic. The other terms and conditions must appear before consumers make a purchase decision (for example, before they “add to cart”).

The disclosure must not be contradicted or mitigated by, or inconsistent with, anything else on the Website. An example of inadequate disclosure is where the consumer sees an offer up front on the landing page of a website that is significantly different from the terms of the offer presented on subsequent web pages for the ordering process.

On consent, the FTC said the seller must obtain positive consumer acceptance of the negative option offer separately from any terms and conditions. A “pre-checked” box (similar to Donald Trump’s campaign fundraising website) does not constitute unambiguous affirmative consent to the negative option functionality.

In the event of termination, the seller must provide consumers with a simple and reasonable way to terminate their contracts. To meet this standard, negative options sellers should provide cancellation mechanisms that are at least as easy to use as the method the consumer uses to initiate the negative option function. The seller cannot try to “save” the sale by promoting another product. If the customer can cancel by phone, there should be no extended wait.

All relevant online service providers

Any regulation of dark models by the ACCC in Australia would affect online service providers in general, not just browsers, and given the pervasiveness of dark models, it is likely that a significant proportion of online service providers could be affected.

At the moment, there are steps companies can take to avoid encountering problems by ensuring that an appropriate balance is struck between business interests and valid concerns such as maintaining security and the interests of users, in the user interface design. This could include, for example, ensuring that ‘routes’ do not overly favor business interests over user interests, and generally ensuring that settings (even those that may go to the against a company’s commercial interests) are easily accessible to consumers and maximize consumer choice where possible. The FTC’s enforcement guidelines could provide a useful guide.

If there is one clear conclusion from the ACCC interim report, however, it is that dark trends are now firmly in the ACCC’s sights.