The Netherlands Authority for Consumers & Markets (ACM) closely monitors the misleading of consumers by online stores, including the use of so-called dark patterns. The use of these manipulative techniques is widespread, as a survey by European consumer regulators has shown. Practices by which consumers are misled were found at almost 40% of the online stores surveyed.
Companies that fail to comply with the rules risk a fine of up to €900,000 or 10% of their turnover. Since 2020, ACM has furthermore had the power to shut down fraudulent online stores, which it exercised for the first time last month.
Vincent Romviel (a lawyer at Thuiswinkel.org) and Cyriel Ruers (a lawyer at Maverick Advocaten N.V.) will host a webinar on 14 May 2024 on the use of dark patterns. In the run-up to that webinar, we discuss in this blog what dark patterns are and what online stores should pay attention to.
What are dark patterns?
There is no single uniform definition of ‘dark patterns’. ACM defines dark patterns as concealed ways of misleading consumers, or as misleading designs of websites to induce consumers to act in a manner that is not in their interest. The Data Act proposal defines dark patterns as design techniques that induce consumers to make decisions that negatively affect them. The Digital Services Act (DSA) refers to practices that “materially distort or impair the ability of recipients of the service to make autonomous and informed choices or decisions”, which can be used to induce them to make unwanted decisions that negatively impact them.
In all cases, (subtle) design choices or processes on websites (online stores, platforms or apps) are therefore involved that may induce consumers to make choices that are not in their best interests or that they would not otherwise have made.
In the absence of a legal definition, there is no general legal ban on the use of dark patterns. However, some dark patterns may constitute a prohibited misleading commercial practice (Articles 6:193c et seq. of the Dutch Civil Code, implementing the EU Directive on unfair commercial practices). This must involve the provision of (incorrect) information that may deceive the average consumer and cause him or her to take a decision on a transaction that he/she would otherwise not have taken. Some dark patterns are on the so-called blacklist of misleading commercial practices and are in fact expressly prohibited.
Examples of prohibited dark patterns
A survey commissioned by the European Commission (see this blog) has revealed a catalogue of practices that – according to the European Commission – constitute dark patterns. In the absence of an unequivocal legal standard, it is doubtful whether all these practices are indeed prohibited, but a number of dark patterns are likely to constitute prohibited misleading commercial practices, such as:
- fake countdown timers that create a false sense of urgency (‘offer valid for 10 more minutes’, while in fact the price remains the same or even better after that time);
- fake reviews;
- fake scarcity (‘only 1 room left’, when more are actually available);
- fake discounts (discount ‘from €30 for €15’ when the product was recently offered for less than €30); and
- sneak-into-basket (when purchasing a phone, a charger or device insurance is automatically placed in the digital basket).
The DSA even introduced an outright ban on dark patterns for online platforms. Article 25 of the DSA lists the following as examples: (a) placing more emphasis on certain choices when consumers are asked to make a decision or choice; (b) repeatedly asking consumers to make a choice when that choice has already been made, especially in the form of pop-ups that interfere with the user experience; and (c) making the procedure for terminating a service more difficult than that for signing up for it (also known as ‘roach motel’). Failure to comply with this prohibition can result in a fine of up to 6% of the platform provider’s annual global turnover.
Stricter enforcement, high fines and online store shut down
The ACM in recent years has warned several online stores for using dark patterns. Earlier, the ACM fined a Dutch online store €100,000 for posting fake positive reviews and removing negative reviews. An online shop for food supplements was given an order subject to a penalty to stop using purchased fake followers and fake likes on the company’s Instagram account. See also our blog on this subject.
Since 2020, ACM has also had the power to shut down fraudulent websites. It exercised this power for the first time in March 2024, making it the first regulator in Europe to do so. The ACM shut down several sites of online store TI-84shop, a seller of consumer electronics. It had received several complaints from customers that products were not delivered and that customer service was unavailable. TI-84shop also allegedly blocked negative reviews. In April 2024, ACM went one step further and, in the form of an independent order, forced Stichting Internet Domeinregistratie Nederland to deregister two TI-84shop domain names.
ACM may take these drastic measures only if there are no other effective means of putting an end to an infringement (such as imposing an order subject to a penalty on the operator of a website) and there is a risk of serious harm to the collective interests of consumers. Prior authorisation from the examining magistrate (a judge) in charge of criminal matters at the Rotterdam District Court is furthermore required. That condition does not apply if ACM wishes to impose a fine or an order subject to a penalty.
Online deception remains high on ACM’s agenda
ACM strictly monitors compliance with consumer rules. Protection of consumers, also against online misleading practices, is a key topic within ACM. For instance, 70-80% of all investigations launched by ACM in recent years related to consumer protection. This year, ACM has announced that it will again pay extra attention to the protection of online consumers and the prevention of online misleading practices.
If you would like to know more about the use of dark patterns, watch the Thuiswinkel.org webinar on 14 May 2024.
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