Design features used by websites and apps to influence consumer behaviour are under the spotlight, with some earning themselves the unenviable moniker, “dark patterns”. Whilst many design features can be benign and beneficial for consumers, dark patterns can have the opposite effect, using deceptive or manipulative design to encourage consumers into making choices or decisions that greater favour the trader rather than the consumer themselves.

Dark patterns can include practices such as low stock messaging (telling users that limited quantities of a product/service are available), nagging (redirecting a consumer (often repeatedly) from what they’re trying to do) and confirm shaming (guilting users into opting into something with the option to decline worded so as to shame users into complying).

The government, the Competition and Markets Authority (CMA) and the Advertising Standards Authority (ASA) appear increasingly alive to the detriment caused by dark patterns. The government published its response to the consultation: Reforming competition and consumer policy, which notes the mounting evidence of the negative impact of exploitative online choice architecture practices on a consumer’s ability to exercise choice, and will continue to research the matter to identify harm to consumers and how this can be remedied. The CMA has itself published two papers on the harms caused by dark patterns on consumers and competition, whilst the ASA regulates misleading practices under the CAP Code.

With AI and the metaverse entering the fray, it is clear that the use of dark patterns will come under ever greater scrutiny. Traders will need to be careful when using design techniques to exploit consumers’ cognitive biases, ensuring that they are treading the increasingly fine line between legitimate persuasion and manipulative practice.