Dark Patterns on the Advertisement Board’s Agenda


INSIGHT
Published
Jun 6th '24
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Unfair commercial practices, also known as the “dark patterns” in the world, have entered the agenda of the Advertisement Board. Dark patterns may in fact be considered as unfair commercial practices regulated under the Regulation on Commercial Advertising and Unfair Commercial Practices (“Regulation”). Pursuant to the Regulation, a consumer- oriented commercial pratice is deemed to be unfair if it does not comply with the requirements of professional care and if it significantly impairs or is likely to significantly impair the economic behavior of the average consumer or the average member of the group to which it is directed. Consumer-oriented commercial practices are considered to significantly distort the economic behavior of consumers if they reduce the average consumer’s ability to make an informed decision and lead them to execute a contract which they would not otherwise be a party.

 

Accordingly, within the scope of the Examples of Unfair Commercial Practices presented in the annex of the Regulation, the 22nd subparagraph under the heading “Deceptive Commercial Practices” considers “Using methods that adversely affect the will of consumers to make a decision or choice by means of tools such as guiding interface designs, options or expressions regarding a good or service on the internet, or aiming to cause changes in favor of the seller or provider in the decision to be made under normal conditions” as an example of unfair commercial practice. Therefore, using tools and methods such as manipulative interface designs, options or expressions that adversely affect consumers’ will to make a decision or choice in digital environments, especially on the internet, or that aim to cause changes in favor of the seller or provider in the decision constitutes violation of the principles of good faith, and these acts can be considered as dark patterns.

 

The Advertisement Board recently decided to impose administrative sanctions on companies that engage in dark practices such as presenting pre-selected options to consumers, making alternative options difficult in order to direct consumers to certain preferences in order to negatively affect consumers’ will to make decisions or choices in digital environments. Accordingly;

 

  • The Advertisement Board evaluated the fact that offering an easier way for annual subscriptions by directing consumers to a page where the purchase can be made quickly, while offering a more difficult way for monthly subscriptions by directing consumers to a page where consumers can obtain more information, as forcing consumers to execute a contract to which they would not be a party under normal circumstances and negatively affecting consumers’ will to make a decision or choice.
  • The Advertisement Board evaluated the notifications informing about large number of consumers were attempting to purchase tickets when consumers entered website for ticket page as a negative impact on consumers’ economic decision-making and choice-making will.
  • The Advertisement Board evaluated the pre-selection of the subscription model with the longest term and the most advantageous for the provider when offering various subscription options to consumers as forcing consumers to execute a contract to which they would not be a party under normal circumstances and negatively affecting the consumers’ will to decide or choice.

 

The Advertisement Board evaluated the designing the tools for purchasing an updated version of the product offered by the provider in a more attention-grabbing manner while designing the tools for keeping the older version of the product in an indistinguishable manner, as forcing consumers to execute a contract which they would not be a party under normal circumstances and negatively affecting consumers’ will to make a decision or choice.

 

Source: Global Advertising Lawyers Alliance (GALA). Reposted. By Hande Hançar & Baran Güney

 

About GALA

GALA is an alliance of lawyers located throughout the world with expertise and experience in advertising, marketing and promotion law. GALA provides a worldwide resource to individuals and corporations interested in answers to questions and solutions to problems involving the complex legal issues affecting advertisers and marketers. GALA, a network of independent law firms, is neither licensed nor authorized to render legal services.

 

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