Sometimes referred to as ‘Online Choice Architecture’ or ‘Deceptive Design Patterns,’ Dark Patterns are a range of design decisions implemented to manipulate consumer behaviour in online spaces. There is concern that these practices cross the line beyond persuasion by exploiting human cognitive biases, confusing and coercing consumers into making decisions they may not have intended to make.
Many of the practices considered ‘Dark Patterns’ have long been regulated under the CAP Code. Their use in advertising is not inherently problematic, however there are some considerations advertisers should bear in mind to ensure they do not mislead. Here are a few examples which have come up in ASA rulings over the years.
Choice Structure - the design and presentation of options
Two rulings for a third-party shopper reward programme touched on the design and choice layout decisions in ads which appeared post-checkout in a number of online retailers. They were ultimately ruled to be misleading as the presentation of choices were not clear, nor were they clearly identifiable as ads for a paid third-party subscription scheme. The rulings noted the following design decisions:
The ads placed nothing upfront to indicate it was a marketing communication for a third-party savings programme.
They offered a £20.87 cash back “Welcome Reward” which, not being a round number, appeared as though it was calculated based on the purchase they had just made, but was actually a standard sign-up reward from the advertiser.
Claims emphasising that the order had been finalised implied that consumers had already fulfilled the necessary requirements to receive the cash back reward and that it could be claimed without further obligation, yet signing up and paying for the “partner programme” was still required.