When AI intersects with the murky world of deceptive consumer practices
Author: Alex Cater
Key Contact: Declan Goodwin
If you think you haven’t come across dark patterns and AI, you are likely to be wrong. Do your social media adverts know what you want better than yourself? Are those “limited time only” sales just too difficult to say no to? Are you still trying to unsubscribe from that streaming service you have only used once?
If the answer is yes to any of the above then you might be the victim of “dark patterns”, which have infiltrated nearly every corner of consumer markets with one intention: to get you to do something you wouldn’t otherwise do.
What are dark patterns?
Coined by Harry Brignull, dark patterns, sometimes known as deceptive patterns, are “user interfaces that have been carefully crafted to trick users into doing things”.
A common example of this would be prominent countdown timers on websites that urge the user to “Buy now before it’s too late!” when, in reality, such sales continue long past the point when the timer runs out.
Another example, the so-called “roach motel” pattern, is a little more complex. It describes the scenario where it only takes a few simple clicks to enter into a service or start a subscription process, but the user must then jump through endless hoops to cancel it.
Other examples include:
- “Trick wording” – where the user is misled into taking an action, due to the presentation of confusing or misleading language.
- “Nagging” – where the user tries to do something, but they are persistently interrupted by requests to do something else that may not be in their best interests.
- “Disguised ads” – where the user mistakenly believes they are clicking on an interface element or native content of a website, but it’s actually a disguised advertisement.
Are dark patterns legal?
Whilst the current UK legal framework does not specifically refer to the use of dark patterns, it is clear that many such techniques may fall afoul of consumer legislation.
The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) contain a general prohibition on unfair commercial practices, including misleading actions and omissions. The Competition and Markets Authority has already started levying this as demonstrated by its recent agreement with Wowcher that saw it revise its unfair selling practices and issue refunds in excess of £4 million to customers.
The use of dark patterns may also contravene UK GDPR provisions, as consent to data collection must be freely given, specific, informed, and unambiguous – which Dark Patterns clearly aim to inhibit. In 2023, TikTok was fined €345 million by the Data Protection Commission in Ireland precisely because privacy options were pre-selected and opt out options hidden.
AI
With more and more businesses making use of its incredible power, AI is now everywhere. With its ubiquity, comes growing concern that such power will be put to use to create dark patterns that are far more complex and pervasive than those that exist currently. Consider the use of chatbot features on websites that are able to act increasingly humanlike and learn from consumer preferences – tools such as these could see the erosion of consumer choice, as bots learn what you want even before you do.
Businesses should also be aware of the risk that they may inadvertently train their AI systems and technology to use dark patterns by learning from data sets that contain such patterns. A generative AI may replicate dark patterns in future content or materials, which could expose businesses to claims and actions where they haven’t even made the conscious decision to use such techniques.
Increased regulatory scrutiny
Dark patterns not only undermine consumer trust but also pose substantial legal risks under UK consumer protection laws and GDPR. In the modern regulatory landscape, such practices will be increasingly scrutinised as technology evolves and more consumers are affected. Businesses should therefore carefully evaluate their own practices and think twice before being tempted to employ dark patterns for their own gain.
For expert legal guidance to help your business navigate complex technology, AI, data protection and privacy issues, please get in touch with our Commercial & Technology team.
