As we have discussed in our first blog, the European Commission (EC) published its long-awaited Digital Fairness Fitness Check report on 3 October 2024. The Digital Fairness Fitness Check aimed to determine whether the existing legal framework for consumer protection remains fit for purpose in the digital age. The report and its accompanying communication demonstrate that the improvement of consumer protection in digital environments is high on the EC’s agenda for its new mandate. While the exact scope and content of new legislation is still discussed in the political arena, there is little doubt that the EC will take action – possibly in the form of a new 'Digital Fairness Act' that could be unveiled as early as next year with a public consultation likely to come first in Q1 2025.
In the following weeks, we will publish a series of blog posts analysing the business practices that were in focus in the Digital Fitness Check and which may be the target of upcoming legislation on the EU level.
Here, we take a deep dive into deceptive designs of digital interfaces, also known as 'Dark Patterns' (for our insights regarding Dark Patterns in data protection law see here, here and here). What are Dark Patterns, how are they regulated today, what are the corresponding results of the Digital Fitness Check and which additional countermeasures may be around the corner?
I. What are Dark Patterns?
The Digital Fitness Check defines Dark Patterns (and deceptive designs) as:
'Commercial practices deployed through the structure, design or functionalities of digital interfaces or system architecture that can influence consumers to take decisions they would not have taken otherwise, eg presenting choices in a non-neutral manner, using fake countdown timers to create urgency, using emotional manipulation to make consumers second-guess their indicated choice, phrasing questions using double negatives, misleading consent options, eg in cookie banners.'
In short: if a digital interface or system architecture is designed to pressurise or mislead consumers, such design could well include Dark Patterns.
While there are clear-cut cases of Dark Patterns – such as fake countdown timers for product offers which create a false sense of urgency – this is not always the case. It may, for instance, be complex to determine whether choices are presented in a non-neutral manner or when a marketing measure which alludes to the user’s emotion turns into emotional manipulation. In general, however, it is clear why Dark Patterns are considered problematic in some cases: consumers should be able to make an informed choice when confronted with transactional decisions online and Dark Patterns are can undermine that very ability.
II. What are the main results of the Digital Fitness Check?
The Digital Fitness Check is, inter alia, based on consumer surveys to determine whether the existing key consumer law instruments are sufficient to ensure a high level of consumer protection in the digital environment. The EC’s Regulatory Scrutiny Board, an independent body within the EC that provides central quality control and support, notes in its assessment of the report that the quantitative analysis is mainly founded on opinion-based data and that – given the limitations and uncertainty of the evidence – the report should refrain from stating or suggesting that the evidence base is robust. Despite these concerns, the EC’s report notes that the main conclusions reflect the commonalities identified and are consistent with previous evaluations in the area.
It is true that the EC has long considered Dark Patterns worth addressing. Already in its 2022 Dark Patterns study, the EC concluded that 97%(!) of the most popular websites and apps used by EU consumers deployed at least one Dark Pattern. The public consultation conducted for the Digital Fitness Check found that 89% of consumers reported to be confused by Dark Patterns on websites and 76% felt pressurized to buy something due to the language or the design that was used. A relatively high proportion of consumers participating in the consumer survey for the Digital Fitness Check reported practices which could be qualified as Dark Patterns. This concerned cases where:
- the price of a product increased during the purchasing process (32%);
- the website/app repeatedly requested consumers to make the same decision, eg to get a premium account, offering special discounts, asking to buy a recommended product (48%);
- consumers were shown messages which doubted their previous decision (eg ‘are you really sure you do not want a discount’) (42%);
- preselected options favoured the company, but changing those options was considered difficult (37%); and
- consumers were shown claims that a product was low in stock or high in demand (66%) or only available for a limited time (eg countdown timers running for a few hours) (61%).
III. Existing legal framework and perceived shortcomings
The EC’s report concludes that the existing legal provisions under evaluation ‘only partly address Dark Patterns.’ Though the EC – correctly – analyses that many forms of Dark Patterns may already be inadmissible under the current legislative framework, it does not seem convinced that this provides sufficient protection for consumers.
The report notes that:
- the so-called ‘blacklist’ in the Unfair Commercial Practices Directive (UCPD) which regulates practices which are illegal per-se, only addresses ‘a limited number of dark patterns […] although none of the existing prohibitions refer specifically to digital interfaces and their application hinges upon a case-by-case assessment’;
- Dark Patterns that involve hiding information could amount to misleading actions or omissions under the UPCD, but that legal uncertainty about the fairness and unfairness of specific types of Dark Patterns under the UCPD could undermine the effectiveness of its application; and
- certain practices could amount to aggressive practices under the UCPD, eg, harassment, coercion or undue influence. The report explains, however, that this legal basis remains largely unexplored through enforcement.
The EC further states that new legislative developments also play a role: the 2023 revision of the Consumer Rights Directive introduced measures to prevent Dark Patterns when concluding financial services contracts at distance, while the Digital Service Act (DSA) prohibits online platforms from using certain Dark Patterns, such as the distortion of choices, nagging and difficult cancellations, but explicitly excludes practices covered by the UCPD and GDPR. The EC is concerned that this may create a potential gap in enforcement as the scope of the DSA is limited to online platforms, not covering small or micro enterprises, search engines and individual traders not qualifying as intermediaries. Additionally, the EC notes that the AI Act and Data Act also introduce specific prohibitions against manipulative or deceptive techniques, while the Digital Markets Act (DMA) includes a so-called anti-circumvention clause in order to prevent the use of Dark Patterns to unfairly steer consumer decisions.
In summary, the EC (correctly) recognises that enforcement against many problematic practices may already be possible based on existing, general principles of consumer protection law. There seems to be concern, however, that the application of general provisions of consumer protection law may leave certain gaps, lead to a lack of legal certainty and – in some instances – underenforcement.
IV. Taking Action: Potential countermeasures against ‘Dark Patterns’
Based on its analysis, the EC seeks to address such (perceived) gaps by suggesting clearer and more stringent protection against Dark Patterns and similar deceptive practices. The EC believes that such improved protection could be achieved by specifying the ban on Dark Patterns in the UCPD, eg, by adapting existing prohibitions and introducing new practices to the so-called ‘blacklist’ that specifically address online interfaces and prohibit, inter alia:
- Pressuring consumers during the booking process through urgency and scarcity claims;
- Using misleading and ambiguous language in the presentation of choices to consumers;
- Pressuring or shaming consumers towards a particular choice through emotive language or framing; and
- Adding new charges to the total price when a consumer is about to complete a purchase during a booking process.
Pursuant to the report, this view is also shared by some consumer protection organisations, which argue for a more robust legal framework to combat Dark Patterns. They advocate for a comprehensive prohibition against Dark Patterns and clearer guidelines on factors like the cumulative impact of multiple Dark Patterns.
The report also notes that other stakeholders seek greater legal clarity on key concepts such as harassment, coercion, and undue influence to improve the effectiveness of the UCPD provisions on aggressive practices. It is also suggested to provide easier and clearer mandatory cancellation functionalities if Dark Patterns create obstacles to switching and cancelling contracts. Additionally, some stakeholders propose a so-called ‘fairness by design’ obligation on traders.
Notably, and in addition to potential legislative measures, the EC has proposed several non-legislative measures. Such measures could include updating the EC’s guidelines for consistency with existing laws, improving enforcement practices through guidelines and checklists, developing automated enforcement tools, or creating a European database of Dark Patterns.
Given the limitations of the evidence gathered for the report, it is not entirely clear whether these conclusions are fully justified and whether the suggested measures, including a more granular ‘case-specific’ legislation would significantly improve the situation concerning Dark Patterns. In any event, it seems very likely that the EC will take steps to improve the legal certainty regarding and the enforcement against Dark Patterns based on the results of the report. Companies across all sectors are thus well advised to evaluate whether design choices in their digital products may be regarded as Dark Patterns and to closely monitor potential legislative proposals and developments on the EU level. In particular additions to the aforementioned ‘blacklist’ which specifically target online interfaces, would significantly increase the risk profile in light of the fine regime already implemented in the UCPD via the Omnibus Directive, which provides for fines of up to 4% of the annual revenue in case of major cross-border infringements.
This does not only apply to Dark Patterns, but also to other 'problematic practices'. From 'Dark Patterns' to 'Addictive Design and Gaming': stay tuned for the next issue of our blog series!
