What the Code does not cover
The Committee of Advertising Practice (CAP) has recently explained that the term "dark patterns" has been used to describe 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. In CAP's view, these practices "cross the line beyond persuasion", aiming instead to confuse and coerce.
Although the term is relatively new (at least in common usage) and does not appear in the Advertising Codes, "dark patterns" encompass a range of misleading advertising practices that have long been regulated under the CAP Code, some of which reflect practices that are banned in all circumstances under consumer protection law. The CAP Code has long applied to online advertising (including companies' own websites), and many of the common "dark patterns" align with issues that the Advertising Standards Authority is well-versed in regulating.
This refers to the practice of only revealing additional charges at the final stage of the online checkout process. The CAP Code requires that prices in ads must include non-optional taxes, duties, fees and charges that apply to all or most buyers. Therefore, if charges that apply to all or most buyers (eg, value-added tax) are not being disclosed until a late stage in the process, it is likely that price statements that do not include those charges would be in breach of the Code.
Two other practices described as "dark patterns" are the failure to label paid-for search results as such, and disguising ads as something else to induce consumers to click on them.
The Code requires that marketing communications must be obviously identifiable as such, and that marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession. That includes paid-for or sponsored listings on search engines, which are covered by the Code and should be clearly distinguishable from the natural listings.
Under the Code, ads for promotions must state all significant conditions likely to affect a consumer's decision to participate in the promotion. Such conditions are likely to include:
- whether a paid subscription starts automatically (after the trial) unless cancelled;
- the extent of the financial commitment if the subscription is not cancelled (during the trial); and
- any other significant conditions (eg, significant costs to participate).
"Dark patterns" describe a very broad range of techniques, not just advertising content. For example, the actual business practices used to make it difficult for a consumer to exit a subscription would fall outside the remit of the Code.
Practices that enable the unintended disclosure of data could potentially be assessed under section 10 of the Code ("use of data for marketing"), though others would likely lie within the remit of the Information Commissioner's Office.
CAP says that when it comes to practices involving direct financial detriment to the consumer, material that falls within its remit is clearly covered by the Code. That said, it is an important trend that CAP continues to monitor, particularly with relation to how "dark patterns" can be tailored to groups or individuals, including those considered vulnerable.
For further information on this topic please contact Claire Livingstone at Wiggin by telephone (+44 20 7612 9612) or email ([email protected]). The Wiggin website can be accessed at www.wiggin.co.uk.