The following are the outputs of the captioning taken during an IGF intervention. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid, but should not be treated as an authoritative record.
>> MARTYNA DERSZNIAK-NOIRJEAN: Hello to everybody, I hope the participants are smiling as well.
>> MODERATOR: I would like to welcome all of you, especially our online panelists from the great IGF Summit from Addis Ababa. My name is Piotr Adamczewski, and I represent the consumer protection office. I would like to give the floor to my floor to Martyna Derszniak‑Noirjean who will moderate the panel.
>> MARTYNA DERSZNIAK-NOIRJEAN: Hello to everybody, I hope you can hear me well. My name is Martyna Derszniak‑Noirjean. I'm responsible for international cooperation at the Office of Competition and consumer protection. I have a nice logo behind me. In fact not behind me, virtually with me. And it's very, very nice to be here on this panel, I'm very sorry not to be there in person with you, I imagine my colleagues, Piotr are having, and Ewa are having a good time there, I hope it is very successful. I attended last year, and it was really a great pleasure to be there.
Piotr has been there representing very interesting AI tool on consumer protection, which is obviously the ‑‑ the expertise of all of us here. And this is particularly interesting to be able to have that panel here because we ‑‑ all the experts and professionals in consumer protection that are here with us are consumer protection professionals, but there is a lot of challenges that we tackle, which are related to digitalizations, and that dark patterns are one such area.
So we thought this is ‑‑ it is very relevant to discuss this topic at the IGF, Internet Governance Forum, because we believe that there is ‑‑ it's a gathering of internet professionals, and people who can ‑‑ who tackle issues related to digitalization from a different perspective from us, and we thought it would be particularly interesting to see how we can alert and perhaps discuss and hear your thoughts on this issue of dark patterns, which we struggle with, and it's one of the most relevant and hot topics in consumer protection these days. So I will not tell you what dark patterns are yet, unless ‑‑ if you don't know it, but I'm sure panelists will start ‑‑ will soon explain this to you, but even if you don't know the term, I'm sure you came across them many times, maybe to some extent more or less aware, depending on your background, and depending on how conscious a consumer you are on the internet.
But I will not make this any longer, I will let all the panelists introduce themselves just to state your position and your background, and I will just give you the floor, based on the rundown order in our registration at the ‑‑ at the session. Katarzyna. Katarzyna Araczewska go ahead.
>> KATARZYNA ARACZEWSKA: I'm Katarzyna Araczewska, I'm a Deputy Director in the consumer protection department in the Office of Competition and consumer protection, and almost from the beginning, I worked in the consumer rights enforcement in telecommunication, and e‑commerce sectors. And I also have some experience in legislative processes. So it gives me an ability to look at dark patterns from two different perspective.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thank you. Dries.
>> DRIES CUIJPERS: Thank you very much. Indeed, I'm using an alias today, which was not really intended, but sort of an emergency log‑in. Most people know me indeed as Dries Cuijpers, I work for the authority in consumers and markets in the Netherlands, I have about 20 years of experience in enforcement of which over five years in the digital economy, and I have been very active in the field of dark patterns or deceptive design. I am one of the co‑authors of the guidelines for the protection of online consumers, which basically deals with dark patterns, I will post the link later on in the chat. I think that's it for now, thank you for organizing this session.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thank you, Dries. Egelyn, go next.
>> EGELYN BRAUN: Hello, everyone, I'm Eglin Braun, I'm a legal officer working at the European Commission, I'm also Team Leader for the unfair commercial practices directive, one of the key instruments that would apply to dark patterns, as well as many other digital topics, in my day‑to‑day work, I focus on digital issues and currently coordinating a review of EU consumer legislation from the digital perspective. In terms of dark patterns, it's something on our radar, I helped co‑author the guidelines of the commission presented on the interpretation of the unfair commercial practices directive, which also includes a session on dark patterns, as well as our study that we conducted earlier this year, which examined some of the effects of dark patterns, I will refer to it later on. Thank you.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks, Egelyn. Nicholas.
>> NICHOLAS McSPEDDEN-BROWN: I'm grateful to be participate in this panel today and sorry to not be there in person.
My name is Nicholas McSpedden‑Brown, I'm a policy analyst at the OECD supporting the committee on consumer policy. Which is currently doing a lot of work on dark patterns, and today I'm glad to be able to speak in particular about dark patterns based on a report that the committee published last month, available on the OECD website, which discusses what dark patterns are, they are prevalence online, their harms, and possible responses to them from policy makers, regulators, and businesses, and so this is quite a wide ranging report, and the community on consumer policy is now building on that report with some empirical work to further developing the evidence based on dark patterns of interest. Thank you.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks, Nicholas. Joasia.
>> JOASIA LUZAK: Happy to be here with all of you although virtually. I'm Joasia, a prove err of private law at the University of Exeter in the United Kingdom and I do research on consumer law, consumer behavior, a lot of my research focuses on information, provisioned to consumers and transparency. Since lack of transparency it really leads to deceptive design in dark patterns, I'm very happy to discuss this topic with you today.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much. Last but not least, Leon.
>> LEON MOLENBERG: Good morning, everybody, although here it's good morning, and I'm glad to be here, to be on this panel. I represent the umbrella organization of the national e‑commerce organizations we represent. We represent over 150,000 web shops all over Europe, and I'm already in consumer ‑‑ I've in consumer law since the late 80s and since 15 years I'm working for the e‑commerce sector.
I'm taking part in the consumer policy advisory group, which is busy with considering the refit of European consumer law, and in that perspective, we also have as a subject, dark patterns and the question for dark patterns and new regulation. So I'm involved in the issue from the beginning, I guess, we also have talks with European umbrella consumer organizations on this issue, and as a business, we try to contribute to good understanding of what we mean with the dark patterns. Thank you.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks, everybody.
As you see, we are all consumer protection professionals, and we all have something to do with dark patterns, e‑commerce, things happening online to consumers.
We represent a wide range of actors, as you can see, and it would be very interesting to engage into this topic with everybody here online. If you have any questions, pose them on chat. We will see and hope we can answer them, otherwise we can try to answer them online on the chat.
So back commercial patterns, let's start with Nicholas, perhaps, telling us what they are. You mentioned OECD report, which was declassified last month. We all ‑‑ many of us contributed to this OECD report, and it's ‑‑ it's a very comprehensive review of dark patterns, what they are. So please try and explain to us what they are.
>> NICHOLAS McSPEDDEN-BROWN: Yeah, thanks very much, Martyna for the question. I think for some time, there's certainly been a rough common understanding of dark patterns as being practices, commonly found in user ‑‑ in the user interface design of websites and apps that trick consumers into doing things that they wouldn't have otherwise done. And over time, especially with all of academic research, there's been a growing list of practices that fit that description, and they've been categorized into taxonomies to allow us to better classify them, and so we have examples ranging from fake countdown timers on e‑commerce web sites or having to go through multiple steps to cancel a service or having additional charges added in the final stage of the transaction.
So there's definitely many examples out there. But there's also been a number of definitions out there, and ‑‑ but still no ‑‑ provided by different actors, but still no universally accepted definition, and that's partly because there are several challenges involved.
For example, not all dark patterns influence the consumer in the same way. Some dark patterns are clearly deceptive, but others involve emotionally manipulative framing, which can be quite subtle.
Some practices might not be considered dark patterns for all consumers, in addition it's sometimes hard to draw the line between a dark pattern and other commonly accepted marketing practices, such as just common psychological pricing tactics involving reducing the first digit of a price by one and raising the others to nine for example, which can be considered manipulative. Drawing the line sometimes is really a hard thing. The committee on consumer policy went ‑‑ took account of these challenges and actually took inspiration from some of the legislative text that's been developed in some jurisdictions, trying to define dark patterns and actually in the report, managed to develop a working definition to facilitate discussion among regulators and policy makers across jurisdictions.
So I'll just explain how they've defined it. It's defined as business practices employing elements of digital choice architecture, in particular in online user interfaces that subvert or compare consumer autonomy decision‑making or choice.
It goes on to say they often deceive, coerce or manipulate consumers and are likely to cause direct or indirect consumer detriment in various ways, though it may be difficult or impossible to measure such detriment in many instances.
So this is a really, I think, important first step here in progressing towards a common ‑‑ or indeed a global definition, but it's important to keep in mind this is a working definition, which may well need to be adapted for specific context, such as regulatory application. So as to more easily take action against such practices, but also provide legal certainty to businesses.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much, Nicholas. So in fact, what we can understand there's lots of such practices, there is many, many different types of them, and they have a different range, so to say, of being manipulative and causing harm or detriment to consumers ‑‑ which is why it's difficult to provide the definition, because there is just so many of them and they have such a different type of impact on consumers.
In my view, it's interesting to see how can we define manipulation and what is manipulative. What is detriment, are consumers aware of it. Is it a situation where a consumer makes a choice based on dark patterns and immediately after, they are regretting it, or they are not even aware they have done something that would be their detriment. This is all very interesting. Could you perhaps also say something from your perspective on dark patterns, what they are and why do you think they appear in the first place.
>> JOASIA LUZAK: Yes, of course, I think following up with Nicholas's definition, the OECD provided, I think it's quite interesting to note that the uncertainty as to what is a dark pattern or deceptive design and what is a relatively still innocent marketing practice, the distinction can be blurred, and I wanted to draw attention to the fact that Richard Taylor, who coined the term of nudges, which is choice architecture, which we have a problem with for dark patterns, but he differentiated the choice architecture nudges from the dark patterns by making a point that choice architecture is neutral. So he says the choice architecture itself is never evil, it's how the design of the choice architecture chooses to use it that leads to the issues that consumers experience with deceptive design.
And that means ‑‑ well, he calls these practices sludges instead of nudges, which is quite interesting, we need to be very careful as to what terminology we use because there's more and more comments appearing that dark patterns may not be the best term for these practices, so Taylor used the term sludges, Henry is using deceptive design and he came up with the term of dark patterns originally.
Now, bringing it back to the point why do we have these practices on the market? If we look at the fact that the choice architecture itself is perceived as neutral, then its design would not be something that web designers, graphic designers would refrain from. It's one of the tools to their disposal. The same applies to advertising, marketing companies. It's just one of the potential marketing techniques and tools.
And then the question arises, how is this technology, these ‑‑ this design practices, techniques, actually being used in practice, and this brings us back to the intent.
Now, the problem with intent of the designer or of the trader is that if we only penalize such harmful architecture that was intentionally implemented to introduce harm, that would put a very high burden of proof on consumers and consumer organizations who protect collective interests of consumers. So we could on that basis, argue against looking at the intent. But then the question brings us back to, okay, so how do we then determine these deceptive design practices and how do we actually differentiate them from the other practices on the market, how do we decide what do we prohibit, and what do we focus on enforcement efforts on, and I wonder whether this actually should mean that we should focus on defining the sector design or we simply need to know more clearly what categories of deceptive design there are, and which should be fully prohibited because they have this potential of causing harm in any and all circumstances so we cannot excuse them, and which categories then actually require case by case assessment.
That could happen on the basis of tests we already have, which I'm sure we'll discuss on the basis of the protection for commercial practices.
So this is just a beginning of a discussion, I think, panelists.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much. It was very nice overview. It seems in a way that dark patterns or those kinds of deceptive practices are like a slippery slope. We have online design architecture, choice architecture, and it becomes kind of a slippery slope in the way it is used, perhaps this is one way to be understood. It was a very nice overview by some research at the OECD among others academia, thanks for this. Now I would like to turn to our representatives of the enforcers of consumer law, Dries and to tell us from your perspective of standing at the guard of consumers, why are they ‑‑ why are dark patterns problematic, and perhaps I would start with Dries.
>> DRIES CUIJPERS: Thank you very much, Martyna. I think there's a lot to un‑pact that has been said, I won't go into immediately of intent and design being neutral.
But let's stick to the question that you raised. So I think it's important maybe to, before I dive into the more theoretical, to sort of showcase what we are actually talking about. There's a couple of cases we have recently done, some of which together with other European enforcement agencies that has some clear dark patterns in them. There's two I want to single out just to illustrate what we are talking about in practice. The first one is a case that we did against Amazon where Amazon made it extremely difficult for consumers to cancel their subscription to Amazon prime. So whereas I think you would need about 43 clicks to get rid of am go down Prime prior to the action. We told Amazon they needed to reduce that number of steps to two or three, which I think is a very clear dark pattern.
We haven't investigated this, but some interesting journalistic reporting, which suggested that this was a very deliberate attempt on Amazon's side to retain customers and I think has become a lot easier now for consumers to cancel their subscription if they no longer need it. That's a very clear example of what we are talking about.
Another one I want to mention is a Dutch‑based business by the name of booking.com, which I think is known to many people, who do their bookings online. And they used to use scarcity claims in relation to the numbers of rooms available in hotels that you were looking at.
The information they provided can, of course, be very useful to consumers if only it's true. It might be very relevant for you that only two or three rooms have been left in the hotel you're looking at. However, the thing was, that the ‑‑ the scarcity message you received as a consumer, which said only two rooms left, may actually refer not to the period that you're looking into hiring a room, or it may actually not even be true. So we clearly demanded from Booking to change this and bring this in accordance with reality. Where the information provided by the trader really becomes useful to consumers and no longer puts pressure on them to actually book a room as quickly as possible and therefore probably, you know, be less critical and do less research whether this is actually a best available option for you.
So I think maybe then I'm going to the question on why are dark patterns harmful, and I think it's important to maybe distinguish a couple of types of harms of dark patterns. The one that springs to mind the most is the individual harm. That may be monetary losses in terms of not having the best deal. It could be, for example, time lost during the process. Think about the Amazon Prime where you want to cancel, and it takes you a long time to do so.
Also, for example, privacy lost in terms of the manipulative consent when we are talking about particularly the European setting of the GDPR.
I think the other problem is that we know that dark patterns may have negative effects on competition. It could indeed trigger a race to the bottom where the business best able to manipulate consumers is best able to elaborate its market share and be the winning competitor, which is not something that we would like to see in the market. I think thirdly, we know fairly little about this still, that, you know, on the long term, on the long run, dark patterns may be able to him pact autonomous decision‑making by consumers, which is, I would say, something which is very undesirable and that we do not want to see.
So here I'm thinking on what ad ‑‑ there's a couple of quick things I want to mention. So I think I agree some dark patterns are more harmful than others, we are still in the process trying to find out which are more harmful than others. There's some good work out there, bows o both academic work and work I once referred to by our colleagues from the U.K., from the CMA who have tried to bring an overview of all the different dark patterns and weigh their harms, based on the available empirical research out there, which I think is very useful. I think we also know that some dark patterns, force action or use a default may be stronger dark patterns than others because we know that the biases they play on are very strong.
But I think it's very important to bear in mind that the specific application of a dark pattern may to a large degree determine the harm involved. I think the sales channel being used, whether it's a website, app or maybe in a game is very relevant, also the consumer being addressed, particularly if dark patterns start to be personalized, which is not unthinkable. Also the product or as far as involved may determine the effect of the dark patterns and the extent to which they are ‑‑ the cumulative effects of multiple dark patterns on the website come into play.
So that's I think why we as enforcers think is very important that there is a duty on businesses in general to create fair designs, and we think the way to do that is to oblige them to test the effects on consumers of dark patterns, not just the effects in terms of conversion, which is something that's being done widely, but also to see how do these practices impact consumer decision‑making, and if it leads to the wrong decisions by consumers, then you really have to wonder whether this is a marketing practice that you want to engage in as a business.
So I think I'll leave it there for the moment, thank you.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much. I think that clarifies and in another way I think it shows how complex this topic is. Katarzyna, would you like to add something.
>> KATARZYNA ARACZEWSKA: Yeah, sure. I fully agree that there is a variety of different dark patterns and in consequence, they pose different challenges in combating them. I think that we should have two factors in mind when we are thinking about creating a strategy to combat dark patterns.
The first factor is whether we are actually aware we are facing a dark pattern. It's difficult to combat something we are not aware of.
The second one, whether we actually have an adequate legal ground. Some dark patterns are relatively easy for consumers to spot, like drip pricing, for example. There is a big chance that consumers will notice the change in final price.
Of course, it doesn't mean there's no consumer harm, because even in the best case scenario, consumers lose time and they have difficulties to choose the best offer, and in the worst case scenario, there are monetary losses as well.
But in other cases, the consumers might not even be aware there's a dark pattern there. Even if they can spot the mechanism on the interface, it's not necessarily means they can prevent it.
For example, in 2019 we issued a decision against an airline intermediary, which offered insurance as per selected options.
In this case, of course, it resulted in drip pricing, because it appeared at the end, consumers could uncheck the box and prevent the result of the dark pattern. Of course, not everyone noticed the box, which is also, which is also important in this case.
But it allowed us some space for discussion with the trader and to initiate a commitment decision. For example, this year, we had a similar problem with a platform for secondhand clothing, and in this case, there was an additional fee, a buyer protection fee, but there was no check box that consumer could unbox, and it wasn't clear for the consumers how to buy without the fee. So it seemed to them that the fee would be mandatory. And the harm in this case, is slightly different because it can affect consumers in a more serious way.
And also, we should bear in mind in some cases consumers don't see the dark pattern, sometimes they see the consequences, for example, in subscription traps, in such cases we receive a lot of complaints, but it is quite difficult to investigate it since we don't know where the subscription trap may originate.
Last year we issued a decision, it was also a commitment decision against Orange, an internet service provider, concerning a subscription trap, which was activated by SMS, it's a notification, it's SMS, it's not stored in the mailbox, so consumers thought it was just a sort of Spam, they clicked, there were two buttons, okay and cancel and didn't even remember it. All the information they could provide us with were concerning consequences of the subscription trap because they couldn't remember even seeing the notification, clicking on it. And it also poses some challenges because if we don't have enough information in the complaint we receive, it's very difficult to investigate. We cannot use sweeps, for example, to find such practices, because it doesn't affect everyone. It's not enough to enter on the website to see whether it's all right. Sometimes there are more factors involved.
And then it also leaves us cases where there is no visible consequence, it's not the first site. Like for example, when consumers see recommendations that should be best for them, but not necessarily are, and to estimate the detriment in such cases, I think, is the biggest challenge, especially that we don't always have an adequate legislation at hand. UCPD directive is a great tool and allows us to address many, many challenges on the market, but not all of them, unfortunately.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much. Perhaps before we finish talking about what dark patterns are in theory and practice, I would just ask Egelyn to briefly present the work that the European Commission has done on the prevalence of dark patterns, perhaps you could add something to what Katarzyna, and Dries has said.
>> EGELYN BRAUN: Earlier this year we published on dark patterns. We needed to get empirical evidence on how prevalent dark patterns are and do they impact consumer decisions because we hear a lot of discussions about the potential to be harm juvenile there rent that many that prove for each of the different types of dark patterns we have talked about what degree of impact do they have on consumers.
So just very briefly, the findings are quite alarming, first of all, dark patterns were considered to be highly prevalent, and here I'm talking about 97 percent of the most popular websites and apps used by EU consumers contained at least one dark pattern, most of them had multiple dark patterns combined. So that shows there's a huge problem of consumer manipulation. The most common dark patterns were hidden information, creating false hierarchies, preselections, like the pre‑picked boxes Katarzyna mentioned. Difficult cancellations. What Dries was mentioning, how many clicks it took to cancel Amazon Prime. It appears dark patterns are universally prevalent right now, not just that we are making a fuss about some kind of new hyped up term, but it really is a big issue.
In terms of how they actually impact consumers then, we conducted two behavioral experiments, the first one we had with other 7,000 participants and six EU Member States, and essentially we asked them to choose between two different packages of digital service and tried to manipulate their decision with dark patterns, to choose one of them.
With that experiment, we proved that dark patterns did have a statistically significant impact on the transactional decision of an average consumer, so to speak, but vulnerable consumers and vulnerable consumers were more impacted, especially those who were older and those with a lower education level.
So indeed, it is a problem and we have now some empirical evidence they do impact consumers. Interestingly enough, as a last remark, we also conducted a smaller experiment to see whether ‑‑ going beyond the mic harm, privacy harm, that was mentioned, that consumers can have, do they also suffer some neurophysiological harms or some additional facts from being exposed to these dark patterns, and there we conducted this experiment with 120 participants and three EU Member States, and the results were a bit more mixed.
What I can say is that a type of forced action dark pattern, where you really strongly encourage the consumer to take a specific decision, those did have the biggest impact, they increased the heart rate of the participants, which is associated with anxiety, with alertness, and also the participants reported the highest levels of frustration and feeling like they were being manipulated.
I think there's a lot of interesting research still to be done which of course could help policy makers and enforcement authorities. Indeed I encourage you to read the study and keep the research going on these issues.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much to all of you, I think it's very interesting to hear, so I think we have managed clearly to establish or ‑‑ first of all, clarify what the dark patterns are, establish that there can be different types of dark patterns, but clearly are detrimental in biased way to consumers, not just in terms of the economic losses, but as Egelyn have described, in terms of even impact on their health, and both in physical and psychological. They should be isolated from regular legitimate marketing practices.
So let's now focus on discussing how we can fight them and trying to see what different actors are responsible in fighting dark patterns in addressing them. And I think when we discuss this, there is the clear balance to see on what's the burden on different types of actors in terms of businesses themselves and legislators of the law and consumers themselves, and to what extent they should be empowered, or they should be equipped to defend themselves against those practices.
So very briefly, I would like to hear Nicholas to tell us what is your perspective on that and after this, we are going to ask Leon to share his perspective from the business practice. Nicholas, perhaps you can go first.
>> NICHOLAS McSPEDDEN-BROWN: Yeah, thanks very much, Martyna. I wanted to support what other panelists have said about the wide prevalence of dark patterns, the differing levels and types of harms mentioned and the vulnerability of certain consumers, which is also thoroughly detailed in the OECD committee on consumer policies report on the topic.
More to your question, yes, indeed there are many actors that need to be involved in addressing dark patterns, and so ‑‑ and as I think has been mentioned a bit many dark patterns already fall foul of existing consumer and data protection laws in many jurisdictions.
And so we have seen consumer and data protection authorities playing ‑‑ they play a key role in enforcing those laws and there's been a number of successful enforcement actions around the world including against major online platforms and Dries and Katarzyna have touched on those they've been involved in. Authorities can contribute by providing guidance to business. We have seen again around the world various authorities providing guidance, Egelyn has mentioned guidance and Dries. In terms of raising awareness to consumers and along with consumer organizations as well, there's been a number of consumer organizations playing an important role of educating consumer about the dangers of dark patterns. As Katarzyna slightly touched on, there may be gaps in existing laws. Not all will fit in existing consumer law, so policy makers here also have a role to play in plugging those gaps.
Indeed, we have seen many regulatory proposals in recent years across jurisdictions, particularly relating to online platforms to address some of those dark patterns that might not be able to be addressed within the scope of existing law.
Other actors ‑‑ important actors are researchers, they play important role in developing the evidence base that ‑‑ to support policy actions, including as we discussed, conducting more empirical studies to understand harms, but developing tools to try to sort of detect dark patterns more easily. There's been a lot of interesting developments in terms of the technology around for example automatic scraping of websites to try to find out where dark patterns are more prevalent. And key actors, of course are businesses and especially user interface designers have a role to play in trying to ‑‑ in the first place, to comply with existing laws, but also developing and abiding by fair marketing and design standards, and also trying to find choice architecture to make sure they lead to good consumer outcomes.
And a final actor here, consumers themselves, consumers can play a good role ‑‑ important role in learning about dark patterns and also employing tools ‑‑ some tools that have been developed such as browser extensions or certain software that allows them to detect and mitigate dark patterns on their own, as well.
I think my main point, it's a communal effort, shouldn't be left to consumers, each actor in the system has an important role to play.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much. Perhaps you can tell us more about this Leon, since you have described a lot on the background on how this has come to be and how dark patterns have become so prevalent, from the perspective of choice architecture, what's your take on these, Joasia.
>> JOASIA LUZAK: I would support Nicholas's statement there is a huge role for businesses to play, if you look at it from the perspective they are the ones to decide how the choice architecture will be used and what purposes. Drawing their attention to ethical conduct, ethical business behavior, setting up these codes of conduct for different industries, I think that's really the key point. They have the dominant role here to play.
Additionally, what I wanted to mention, while there is this incentive to say let's raise awareness of dark patterns and deceptive design of consumers and the issue will be solved, I think we need to remember that ‑‑ well aside from the fact it's not that easy to make consumers aware of what is deceptive. There is the additional problem even if we are aware of different practices, studies show due to behavioral biases, so fear of missing out, we will likely still proceed with certain transactions that will not be in our best interest.
Here, actually, I think this is putting like a pin on it, because this is where I think our regulations also fail us at the moment, for example for commercial practices, protection to kick in, we need to prove that consumers took a decision different as a result of that practice, than they would have normally taken. If we cannot prove that impact on consumer behavior, the protection will not apply.
If consumers would have proceeded with the particular transaction, regardless of that deceptive design, there is a problem. And the question is to what extent did the application of the deceptive design cause additional harm to consumers that wouldn't have applied previously.
It's a very small and slight distinction that will not be easy to apply in practice.
So I think it's important to keep in mind these behavioral biases will act really strong lye here against consumer and often not be able to protect themselves, which is why we need to offer them the additional level of protection.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much. So the spotlight on businesses now. And Leon finally perhaps you can tell us from the perspective of e‑commerce businesses, how aware you are of this problem and what do you think businesses can do to combat dark patterns.
>> LEON MOLENBERG: Of course, first to ‑‑ we are also engaged in the discussion, so we are getting more and more aware of these practices of dark patterns, although we have a problem with the definition of dark patterns, dark has a negative connotation, and we want to differentiate between those influencing mechanisms and interface design, which cause harm, and which are helping the consumer to make a good choice.
For instance, to give you an example there where we want the consumer to make a more sustainable choice, give them information on sustainability, and it might bring them to another decision than he originally wanted. Not all influencing is ‑‑ in our view is dark or is negative.
So we prefer, let me say, a definition which differentiates between sludges and nudges. Nudging for the good is well accepted.
Of course, we know, as businesses, that consumers sometimes make decisions there which are not very original. They ‑‑ I think behavioral studies show us that all kind of things influence the consumer's choice.
We think that basically it's allowed to use this insight to ‑‑ let me say to help the consumer to make a choice, but in our view, it borders the limit there where it starts to cause harm to consumers where it is deceptive, where it is ‑‑ where it's using in an improper way and unfair way, missing ‑‑ et cetera, and we are now starting to discuss and to get knowledge and insight on what is considered as, let me say, unfair nudging and what is considered fair nudging and allowed nudging. As a business, we have a need to know this differentiation, because we want to be fair, and most businesses want to treat their customers in a fair way. Although some don't.
I look to the examples brought up by Dries and Katarzyna, it's clear that these practices are not very fair and also let me say the major part of businesses agrees that this is not desirable behavior of web shops.
We also see ‑‑ but we also see that most of what is called dark patterns and unfair influencing is ‑‑ is already covered by existing ‑‑ by existing law, especially the unfair commercial practices directive in Europe or similar legal action in other jurisdictions.
What we also see, which we think is especially for online shopping is the case that consumers always have a right to withdraw in most cases, take and withdraw and they can refrain from the choice if they feel afterwards, feel deceived or let me say not handled fair.
What we also see in Europe, which we think is also in some way helping the consumer to make a good choice is the buy button we have in Europe saying to the consumer, if you now push the button or you click the button, you are entering a paid contract, and as a consequence, it makes the consumer also aware ‑‑ I don't think this is enough, but I think we can ‑‑ when we look at the issue, we can find some, let me say, dark patterns which are not covered by legislation. We have to look very carefully which gaps there are, which legal gaps there are, and don't rush into, let me say, new legislation, which is already covered by the existing legislation, which is not enforced. Because I think there's a big role for consumer consciousness and secondly for enforcement.
Maybe in enforcement I heard some people say how do we recognize dark patterns, maybe mystery shopping is an excellent way to try to find out what dark patterns are actually or what nudging actually is on the market and is used by businesses which are fair and not unfair.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks, Leon. This brings us back to the issue that it seems that the definition of dark patterns is very important, and the definition helps us classify some practices as detrimental and forbidden and also allowed and part of fair marketing practices or even being innovative for consumers. This is something we should differentiate.
We have ten minutes left, and in those ten minutes, I would like that we address two more issues, first of all, the issue on legislation, since legislation should be fit for purpose in terms of fighting dark patterns, being able to ‑‑ not be too, so to say, fragmented or too complex or that it's clear and clear for businesses what is allowed and what is not allowed, that will be a question to Egelyn, whether you think the legislation is appropriate or whether there should be something changed, and very briefly, please and then we ‑‑ I will ask also Dries to say what you think about the burden of ‑‑ or once we establish the legislation, whether it is up to the consumer protection agencies to protect consumers and to what extent the consumers themselves should be able to protect themselves. Please, Egelyn first, tell us what you think about the current state of legislation.
>> EGELYN BRAUN: Indeed, law is very important here. It's essentially that helps you determine whether a practice is unfair or not. Not only the behavioral experiments or opinions on whether something is good or bad, and we have already heard it mentioned a lot during this panel discussion, the unfair commercial practices directive, which is the main EU legal instrument that covers all business to consumer commercial practices, that may happen before, after or during the consumer's transactional decision, so in essence, indeed, also others mentioned, the test is to see whether the practice you have leads the consumer to take a decision they would not have taken otherwise.
I also heard earlier the mention of intention of a possible element, how we define dark patterns.
Currently news EU legislation with the unfair commercial practices directive, attention to manipulate is not a necessary precondition, personally, I think that's important to maintain. Because, indeed, it could be due to negligence or due to a combination of different elements why in the end a certain interface design or commercial practice is considered harmful.
We elaborated more how the current legislative framework applies in guidelines of the commission adopted at the end of last year. Just to give you a very quick overview of what could be the current rules that apply, so indeed under this directive, dark patterns could be contrary to the trader's professional diligence, this means the general standard that is expected from them, when they design their interfaces, it could amount to misleading practice, so by providing false information or truthful information, presented in a misleading way, or it could be hiding information, things like that or could be an aggressive practice, which goes even further in impacting consumers by exercising undue influence over them, or exploiting some of the known vulnerabilities that the company knows about.
And there are specific kinds of dark patterns that are already prohibited in the so‑called blacklist next to this directive, like bait and switch practices, fake urgency cues, like fake countdown timers, for instance, providing false information on market conditions, availability, presenting false prices that the consumer has not ‑‑ prizes met that the consumer has not won or nagging creating the persistent and unwanted solicitations to the consumer.
Looking a bit broader as some of you may know, in addition, of course, to the data protection legislative framework, especially in the recent year, the EU legislative framework has been strengthened so we saw the adoption of the so.
>> Called digital services act, and digital markets act, both of which contained some new provisions that do impact dark patterns, so in the digital services act, there is now a definition of dark patterns you can see in recital 51b, but a prohibition of dark patterns when it comes to online platforms. There is, of course, nuances to it, what exactly is covered, it carves out some practices that fall under the data protection regime, as well as the unfair commercial practices directive.
Looking now towards the future, we do have, let's say, these very broadly applicable laws, which can potentially cover any practice, any kind of dark pattern, we don't need a definition of dark patterns, it can be an unfair commercial practice, is how we define it. But is there more that needs to be done? This is precisely what the commission is looking at.
We have launched a fitness check evaluation, looking at some of our key consumer legislation, and trying to decide whether or not we need further amendments. Dark patterns are one of the key topics we are looking at. For instance, do we need to prohibit new kinds of dark patterns that are currently not prohibited, like Leon mentioned, so identifying where are the gaps.
Do we need additional new obligations, like a fairness by design principle, or a fair or neutral design obligation for companies. Things like that.
So this question is still open, we are currently conducting a public consultation, and let's see in 1.5 years when the fitness check concludes what will be the opinion of the European Commission on this matter.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thanks very much. Egelyn. Final question to Dries, there is also ‑‑ I see exchange on chat about this on empowering consumers and simply to what extent would it be a solution to simply make consumers aware and equip them with knowledge about dark patterns and leave it to them to protect themselves against them.
>> DRIES CUIJPERS: Thank you very much, Martyna. I want to seize the opportunity to address two things, one is legislation and the worthy one indeed is can we educate consumers.
Maybe to start with legislation, I think one thing is important, is to mention that we are really up against very big shift that needs to take place in the business community.
I think ‑‑ I'm certainly not accusing all businesses, I think, as Leon rightly mentioned, of doing this deliberately, although some do, we have to acknowledge. I think generally, the problem is many ‑‑ there is a lack of awareness or compliance in the business community as a result of too strong a focus on increasing conversion or sales or turnover. So I think generally, what we need to do, we need to get this shift going and I agree with Nicholas and what he said, echoing this is really a communal effort, everybody needs to be involved. Squarely responsibility needs to be on the business community in the first place. I think that's a very relevant notion from my side.
I agree with Egelyn that we need to be very careful to introduce intent. It will make it extremely hard to prove dark patterns are violations of the law, as we know from criminal law, and I think most enforcement agencies around the world that are responsible for these kinds of legislations do not have criminal Powers, it would be making matters extremely difficult. I think also we shouldn't sit still in terms of legislating until we know everything, I mean, the call for research, yes, I fully support, but we should not wait with legislating until we know everything about this.
So them the other thing, I just want to mention, not a lot of time to go into detail. I disagree that design can be neutral. I don't think design is ever neutral. And it's just a matter of deciding or actually investigating the effects of design and then deciding whether the effects are desirable or not.
That may be moving to the consumer side. I think we should always try and educate consumers, but I think I want to have a couple of notions of caution here, first of all, and I think this was already mentioned by several people on the panel, very often dark patterns cannot be and will not be recognized by consumers, not even if you educate them. Also, the sheer nature of dark patterns, they play on our subconsciousness, so even being aware of a dark pattern does not mean you're not susceptible to it. That's why I'm highly skeptical of finding a solution, per se, to educate consumers. Secondly it was mentioned, they're not the cause of the problem, they should not be the solution to the problem.
So I think that's some very important notions, that I want to mention around consumer education in relation to dark patterns. So do we need different legislation? Yes, I think we do, do we need some ‑‑ can we use, speaking about the European system, can we use the current legislation, yes, absolutely to a large degree, but I also think we do need specific prohibitions to make it clear what is allowed and what is not allowed, both to consumers, but also to business communities.
So I think they also benefit from clear legislation. Thank you.
>> MARTYNA DERSZNIAK-NOIRJEAN: Thank you very much, and we are exactly 11:00, so this is the end of this panel, and it's not the end of the discussion, of course. It only shows ‑‑ I think we managed to perhaps put on the table the issues that are at stake here, I hope, and to make everybody aware of the complexity of the issue. And we will continue talking about this, if you are interested, reach out to us, and I see there is also some exchange on the chat. Egelyn has posted a link to the fitness check on digital of the European Commission, and I thank you all for being here and for sharing your views and your opinions, and even to us, I think it was to us who work with those issues on a daily basis, it was very interesting to hear each other's views, and let's keep in touch, and I wish very good time in Ethiopia to all the participants of the Internet Governance Forum. And reach out to us if you're interested in anything. Thanks very much and thank you to everybody.