Speaker 1: Dries Cuijpers, Government, Western European and Others Group (WEOG)
Speaker 2: Joasia Luzak, Civil Society, Western European and Others Group (WEOG)
Speaker 3: Nicholas McSpedden-Brown, Intergovernmental Organization, Intergovernmental Organization
Speaker 4: Egelyn Braun, Intergovernmental Organization, Intergovernmental Organization
Speaker 5: Katarzyna Araczewska, Government, Eastern European Group
Speaker 6: Vanina Ríos, Government, Latin American and Caribbean Group (GRULAC)
Speaker 7: Léon Mölenberg - Ecommerce Europe, NGO
Martyna Derszniak-Noirjean, Government, Eastern European Group
Piotr Adamczewski, Government, Eastern European Group
Ewa Sikorska, Government, Eastern European Group
Round Table - Circle - 60 Min
• How can combatting dark commercial patterns aid us in preventing the dissemination of disinformation online? • How can robust legislations regarding dark commercial patterns protect consumers online? • How can we effectively raise awareness/education on misleading practices such as dark commercial patterns?
Connection with previous Messages: Our workshop will draw on two IGF 2021 messages under the theme of trust, security and stability. The first one: “The development and implementation of cyber norms should include the views of all stakeholders (including victims, first responders, and frontline defenders) and address meaningfully their needs and responsibilities. Processes need to be based on research and analysis which include these communities.” Our discussion surrounding legislation and regulation to combat dark patterns will stem from the notion of implementing cyber norms that will address both the need for protection and responsibility of stakeholders. The second one: “A responsible use of AI algorithms ensures the preservation of human rights and avoids biases that intensify inequality. Policies to deal with misuses should be developed where needed.” Since dark patterns are an interface based on algorithms in the internet, our discussion will focus on how to deal with such misuses.
Targets: The main topic of our session is related to dark commercial patterns. Dark patterns are by nature manipulative towards consumers. Some dark patterns can also be discriminatory toward consumers, for example where they give unequal treatment to different consumer groups. As one of the key focuses of our panel will discuss how we can better policies and legislations to combat dark patterns, this will thus link to ensuring the elimination of discriminatory practices. In doing so, it will ensure a reduction of inequalities of outcome, linking to target 10.3.
With the rise of digitalization, the notion of digital fairness becomes more prevalent and more prominent, especially in addressing challenges such as dark patterns - practices that have a tendency to lack transparency and take advantage of psychological processes linked to decision-making. Given that dark commercial patterns take place in the online environment, in order for the problem to be effectively tackled, it is vital that the wider Internet-related community becomes aware of this phenomenon, and its complexity. This way, their participation in the debate on tackling them may aid consumer protection bodies to develop the most appropriate solutions. Dark commercial patterns are complex issues for policy makers and enforcement authorities to tackle, already at the stage of defining them. As of yet, there is no universally agreed definition, but in general dark patterns are understood as a practice which, through user interface design elements, unfairly leads or is likely to lead consumers to make a choice that they would not have made absent the practice. Some dark commercial patterns deceive users while others nudge them to make choices that are probably not in their best interests. Some practices may make use of the knowledge of consumer behavior, e.g. that consumers often interact with similarly formatted interfaces on ‘autopilot’ and do not double-check if they are indeed correct. Often, such practices exploit cognitive and behavioral biases. For example, drip pricing, involving adding non-optional fees late in the transaction process, exploits the anchoring and endowment effects, while a false countdown timer exploits the scarcity bias. Other practices try to omit or poorly phrase information, so that consumers have to deduce how they should answer – oftentimes misunderstanding the information and falling into the dark pattern. Furthermore, with the evolution of the digital sphere, the primary definition becomes inept, and the question of what could be drawn under the term “dark pattern” remains a point of contention for many. This session seeks to discuss not only the impact of dark patterns on consumers but also what different stakeholders can do to mitigate the risks of this unfair trend. We aim to spread awareness and find solutions in a wider Internet community present at the IGF. It is important to note that while dark patterns are a hot topic among the consumer protection agencies and experts, it is very important to present this topic at the IGF forum. Dark commercial patterns are inevitably linked to the shift of commerce to the Internet. They are a growing threat and awareness about their presence needs to be spread among all stakeholders. IGF is an excellent place to emphasize such issues. To achieve a substantive and informative debate also for IGF participants, we ensure panelists of different key groups: consumers, regulators, academia, and international organizations. With a variety of speakers who are leading experts tackling the topic, the panel will be able to cover a multitude of related aspects, as described below. • First, our speakers from consumer protection agencies will explain to the listeners what dark commercial patterns are in practice. They will talk about their observations and experience with dark patterns: what they are and why they are problematic from the consumers’ point of view. • Next, our speaker from the OECD, will discuss the OECD Committee on Consumer Policy’s current work on the topic, briefly summarizing its ongoing report on dark patterns that will have been published by the time of the event. Among other things, he will talk about the nature of dark patterns (including difficulties regarding a definition), evidence regarding their prevalence, effectiveness and harms, regulatory and enforcement responses in different jurisdictions, as well as possible educational, technological and business responses. • Our academic speaker will further this discussion by giving her insights on academic concept of dark patterns, identified by scholars different approaches of categorization of these patterns, which may help with the recognition of patterns of unfair commercial behavior by enforcement agencies/organizations, as well as various legal solutions that have so far been recommended to tackle these practices. • Before opening the floor to a wider discussion, we will return to our consumer protection agencies representatives and our speaker from the European Commission to talk about proposed legal solutions, enforcement issues and best practices. • Moreover, speakers representing businesses will provide their perspective on how businesses perceive dark commercial patterns and their awareness of the impact on consumer choice – as well as what actions they undertake to mitigate negative impact. The insights and analyses necessary to deepen the considered issues, providing recommendations and depicting action areas will additionally be provided by speakers from both governmental and non-governmental organizations. One of the horizontal themes to be raised during the panel is digital inclusion/exclusion. Dark patterns are an issue for all consumers – as once noted, all consumers are vulnerable to dark patterns, however, those less accustomed to and knowledgeable on the nuances of technology may be even more prone to the damage that dark patterns can do. Those of increased vulnerability have usually been identified based on an external characteristic they possess i.e.: older age groups, children or groups in less technologically developed communities. Recently, consideration started to be given to the new approach to digital vulnerability, following which all consumers could be vulnerable to practices such as dark patterns. This raises questions of the need to introduce additional safeguards in the digital environment to protect vulnerable consumers against these practices. The panel will revolve around and try to answer the following questions: • What are dark patterns? • How prevalent, effective in influencing decision-making, and detrimental are dark commercial patterns to consumers? Are some more so than others? • How can we define/classify online dark commercial patterns in a way facilitating better enforcement of consumer protection? • How to effectively raise awareness/education of online on dark commercial patterns amongst consumers and consumer organizations? • Are the regulations/laws in place for the use of dark patterns for the use of unfair commercial practices effective to address dark commercial patterns? Where are additional regulations needed and where are existing ones sufficient? Where would we need to introduce additional regulations and where are existing ones sufficient? • Who is (particularly) vulnerable to dark commercial patterns? • How can we enforce compliance with such regulations? • How can we promote ethical design of online architecture as an element of professional diligence? • What are the roles of different actors in fighting dark commercial patterns?
The panel shall advance the progress in better understanding dark commercial patterns and how to protect consumers from them. The ambition of this Workshop is to spread awareness about them and bring the topic of dark commercial patterns from the consumer protection experts to the wider and global Internet community. Using the opportunity of the presence of a variety of IGF participants, online and offline, we will aim to collect new inputs into the debate held mainly among consumer protection bodies and experts, both during the panel as well as a follow-up to it. The Panel would discuss practices commonly defined as dark commercial patterns, the ongoing debates about what constitutes a dark commercial pattern, and how we can counteract such practices from the perspective of governments, business and consumers. We will connect with other regulators and academia to provide a wider perspective and unique insights.
Hybrid Format: We plan to organize a Workshop, specifically a Round Table (Circle) in the hybrid format in order to facilitate participation to both speakers and participants present both online and onsite. The Round Table will have a defined structure and parts according to the goals of this format. We will put speakers in conversation with one another after a moderator introduces experts and their relation to the topic. We are aware that the discussion has to take place with equal weight and equal opportunities. First of all, we will provide two moderators – one each onsite and online - who will jointly facilitate the discussion. One of them will be present physically while the other one will be online in order to create a sense of representation to both groups of participants and to facilitate a hybrid discussion. The online moderator will also manage the chat. In our opinion, the dual-moderator approach will ensure that the audience is being actively challenged to follow the speakers, share their reflections and ask questions. During the workshop we shall use other online tools such as blackboard and voting app. If time permits we would like to hold breakout rooms for brief discussions. This will ensure that even more passive participants are stimulated to actively participate. Moreover, polls on zoom or Mentimeter are also a good way of stimulating involvement from an online audience. Menti can also be used on phones so could also be on a phone so participants physically in the room can also participate without a need to carry laptops with them. The topic of dark patterns is a topical and a highly emotive issue that will undoubtedly attract public attention, especially when discussing how we can better understand and thus better protect consumers against dark patterns. The discussion will be geared towards addressing the above-mentioned questions and providing answers based on the discussion and interaction with online and offline participants.
Usage of IGF Official Tool.
In order to reduce consumer detriment from dark patterns all actors must act and cooperate for effective consumer protection.
One of the next steps should be trying to establish consensus among actors on which dark patterns are most harmful.
A summary of the main takeaways of the session:
The discussion focused on the challenges posed to consumer protection by dark patterns, through the lens of various sectors. The speakers were introducing their comments one by one according to the round-table routine. Led by moderators, they displayed the discussed issues from different angles depending on their background. Thus the ultimate conclusions incorporate a combined vision of policymakers, business and academia.
The first challenge the panelists touched upon was that dark patterns are not all the same, making it difficult to draw the line between dark patterns and common marketing practices. This issue led to the discussion on how can we differentiate, with some panelists claiming that common marketing practices have fair and neutral designs, rather than manipulative and detrimental. These can be classified as choice architecture nudges instead of dark patterns, which are seen to negatively impact autonomous decision making. However, other panelists argued that this is not so simple, as no practices can be seen as wholly neutral, and that even marketing that tries to be unbiased does affect consumer decision making in one way or another.
The panelists then moved on to say that in terms of terminology we need to be careful and analyze which words we use. One example given was the use of the term “sludges” instead of “dark patterns”. Another issue surrounded consumer detriment – are consumers aware that dark patterns can cause them harm, and from a consumer protection perspective does it matter or are dark patterns that consumers are aware of equally grievous as those that they are not aware of?
Next one of the panelists gave two case study examples of companies that were caught using dark patterns. The first company was Amazon, who made it difficult to cancel its Prime subscription due to many stages of cancelation. This was seen as a deliberate attempt to retain its customers, and Amazon was ordered to drastically reduce the stages of cancelation to make it more accessible to consumers. The second company talked about was Booking.com, who had misleading scarcity claims – these claims were found to be vague or referred to a different time range than the consumer was interested in. This led to the key issue of corporate responsibility – that businesses must hold themselves accountable for the use of dark patterns and decide whether they want to engage in activities that they know cause consumer detriment. However, in order to achieve corporate responsibility, the panelists agreed that consumer protection authorities need to provide adequate guidance and raise business awareness and education. This is so that businesses can develop and abide to ‘fair marketing’. The panelists argued this is important as many consumers have a ‘fear of missing out’ and due to this can make decisions that they know may not be in their best interest. One of the panelists even stated that the business community needs a shift – that currently there is too great of a focus on turnover and not enough focus on consumer welfare.
There was some participant engagement from the audience in the chat. The first comment from the audience made was that consumer awareness is the first step and then they will protect themselves just the same as with data protection and cybersecurity. One of the panelists replied that whilst this is the right direction, the difference between, for instance, cybersecurity and dark patterns is that dark patterns are more subtle and not as discernible. Another audience member observed that we can make consumers aware of what influences their choices and decisions (education) and we can educate them on remedies they can take (like the right of withdrawal).
Lastly, one participant asked a specific question on how to protect minors within online gaming, that does not require excluding them from such games or making ‘lite’ versions that usually are not as entertaining as the full game. Our panelist from the European Commission started an answer to this question, by explaining that there is work done regarding this in the Fitness Check of EU consumer law. The European Commission has concerns about certain interface designs and elements, such as "loot boxes" and the use of in-game currencies that could distort the consumer's decision-making. She finished by inviting everyone to respond to the public consultation on EU consumer law that the European Commission has released.