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.
- They included a visually prominent “CONTINUE” button which consumers were likely to believe would end the consumer journey or result in a free cashback reward based on their order from the retailer.
Another ruling which addressed choice structure was for a large online retailer which presented customers with a screen amidst the checkout process detailing a number of benefits to their “Prime” paid subscription service.
The page included an “Order Now with Prime” button which used the same colour presentation as the “Continue” button had on the previous page. Below this was text stating, “Continue with FREE One-Day Delivery Pay later,” which was likely to be seen by the average consumer as a separate option despite being part of the same hyperlink. The option to continue without joining the subscription service was presented in a significantly less prominent manner, off to the side and with design more akin to the page’s Privacy Policy or T&Cs links. The ASA ultimately ruled that the presentation of options here was likely to mislead.
Choice Pressure - the indirect influence on a consumer’s choices
‘Countdown Clocks’ are a good example of this. While not inherently problematic, they visually depict the remaining time in which a consumer can take advantage of a promotion. These are sometimes paired with additional statements adding a sense of urgency, like ‘HURRY ENDS IN XX HOURS XX MINUTES XX SECONDS’. This practice can be useful to signify when a promotion will end, but it is unacceptable to then keep the discount running or keep the prices the same once it hits zero.
Sometimes information about the scarcity or popularity of a product is emphasised on a product page: “Last purchased 1 minute ago” and “Purchased 24 times since your last visit,” and “13,709 SOLD ALREADY” and “291 LEFT.” Advertisers must be able to prove these claims are genuine and not exaggerated.
Choice Information- the content and framing of provided information
Something as simple as showing the previous or future price of a product can serve to make the current price more seem more attractive in that moment. As with any other promotional savings claims, previous or future prices should not be artificially inflated and advertisers should hold evidence to demonstrate that they are genuine.
For bespoke advice on your own non-broadcast advertising, please speak to our Copy Advice team for fast, free and confidential advice.
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