ONLINE SHOPPING
TO MISLEAD OR DECEIVE BY DESIGN: WHAT YOUR FOMO HAS TO DO WITH E-COMMERCE DESIGN THYME BURDON, SENIOR LAWYER, AUSTRALIAN COMPETITION & CONSUMER COMMISSION
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s consumers increasingly shop online, online business practices are increasingly falling under the regulatory spotlight. In particular, certain practices employed by e-commerce businesses in the designs of their websites and applications are coming under increased scrutiny due to their potential to mislead or deceive consumers. This article provides an overview of these practices, often referred to as “dark patterns”, with reference to the Australian context.
DARK PATTERNS IN USER INTERFACE DESIGN The design of a website or app’s user interface (UI) is an important factor in determining the success or failure of an e-commerce business. UI refers to the outward look, feel and interactivity of a website or app and UI design choices include all the visual and interactive elements that a user encounters, including copy, typography, colour schemes, layout, icons, buttons and imagery.1 To maximise conversion (the number of visits resulting in sales) an e-commerce UI aims to facilitate seamless browsing, selection and purchasing for the user.2 Dark patterns are described as manipulative elements of UI design that aim to benefit e-commerce businesses by steering, deceiving or coercing consumers into decisions that they might not make if fully informed and capable of selecting alternatives.3 Such practices may result in consumers purchasing unnecessary goods or services or sharing more personal data than they would otherwise choose to.
6 THE BULLETIN February 2020
TAXONOMY A recent study of “dark patterns” by academics from Princeton University examined the world’s top 11,000 Englishlanguage shopping websites and found that approximately 11% of the sites surveyed contained practices falling within the categories described below.4 • Sneaking: Attempts to misrepresent user actions or hide or delay information that consumers would likely object to. Examples include: ○○ Sneaking products into shopping carts, often described as “necessary” or “bonus”. ○○ Imposing undisclosed and unexpected fees at the final stage of checkout (also known as “drippricing”). ○○ Charging a recurring fee under the guise of a one-off charge or after a consumer provides payment details to secure a free trial (also known as “hidden subscription”). • Urgency: Imposing prominent deadlines on sales to accelerate purchases, e.g. countdown timers and limited-time messages without a specific deadline. The Study found a high number of fabricated countdown timers upon examination of the website code. • Misdirection: Use of language, visuals and emotion to steer consumers away from or towards a particular choice without actually restricting the choices available. For example: ○○ Wording an option to decline
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an offer in a way that shames a consumer into opting-in. E.g., an option to decline a discount in exchange for receiving marketing material worded as ‘No thanks, I prefer to pay full price’ (also known as “confirmshaming”). ○○ Making the business’ preferred option more prominent and its non-preferred less prominent or greyed-out to give the impression that it is unavailable. ○○ Using confusing double negatives in combination with check boxes, e.g. “Uncheck the box if you prefer not to receive email updates”. Social proof: Referring generally to what other consumers may have done or be doing. E.g. testimonials of uncertain origin and activity notifications (“57 people are looking at hotels in Glenelg right now”). Again, the Study found a number of examples of fabricated activity notifications upon examination of the website code. Scarcity: Signalling high demand or limited availability to increase perceived value and desirability. E.g. low stock inventory figures and high-demand messages. Obstruction: Making certain actions difficult in order to dissuade consumers from taking those actions and not making the process clear up-front. E.g. subscriptions that are easy to sign up to, but hard to cancel. Forced action: Requiring consumers to take certain additional and tangential
