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Consumer's Reader: What did the study about unfair commercial practices and manipulative personalization reveal?
It is not the first time that we pay attention to dark models and unfair commercial practices. The highly competitive environment of the online space forces marketers to look for more and more diverse ways to win the attention, money and personal data of consumers. Their attention gets them advertisers. Conventional advertising is increasingly giving way to digital and the fight for it is even stronger. Online retailers are fighting for shoppers' budgets. Shopping online is getting easier and deliveries are getting faster. It is a matter of seconds to decide who the user should give their money to. But in addition to a monetary resource, users also possess personal data, consumption patterns, interests - all treasures for a large part of content providers on the Internet.
Consumers need to be aware of the ways in which businesses and media compete for all these resources. It is especially important that they are aware of dark patterns because they could influence their decisions in a way that could be detrimental to them. While a well-targeted ad can save a buyer time and money, trying to force them to buy regardless of whether the service or product isn't affordable or suitable, can make them regret the decision later.
Another issue with dark patterns is that they can threaten consumer trust in digital markets and exploit consumer vulnerabilities. These practices require a survey of the market situation and a thorough analysis whether the existing EU consumer protection framework continues to meet these problems. A major challenge is that such practices find use because of the unclear distinction between legitimate persuasion attempts and illegitimate manipulation techniques.
Where are unfair trading practices used?
The European Commission conducted a large-scale study on the use of unfair commercial practices in the Internet space, by surveying consumers from EU member states, within the framework of the Consumer Program (2014-2020), together with the European Innovation Council and the Executive SME Agency. The research specifically focuses on practices that are used in the following types of digital environments:
- Search engine
- Marketplace / e-commerce
- Social media
- User review
- Arts & Entertainment
- Travel and tourism
- Gambling
- Games
- Health and fitness apps
- Dating apps
What are the most commonly used unfair commercial practices?
The research shows that dark patterns are prevalent and increasingly used by traders of all sizes, not just large platforms. According to the secret client test, 97% of the most popular websites and apps used by EU users have at least one dark pattern applied, and the most common are:
- hidden information/false hierarchy
- preselection
- nagging
- difficult cancellations
- forced registration.
The prevalence of dark patterns, however, varies between different types of websites and applications. For example, countdown timers or limited-time promotion messages are quite common in e-commerce platforms, while the use of nagging is more common in health and fitness websites/apps. Overall, penetration levels are similar for mobile apps and websites, as well as for EU and non-EU traders.
How are unfair trading practices used?
Another key finding is that unfair practices are rarely used in isolation and it is common to combine several dark patterns in a single interface design. This trend is predicted to continue, with businesses increasingly using personalization practices and combining them with dark patterns. Although the secret client test identified significant instances of manipulative personalization in the websites and apps studied, the digital ethnography, literature review, and expert interviews highlight the particularly problematic nature of personalization practices that target user vulnerability.
How do consumers perceive unfair commercial practices?
The study also shows that there is a lack of consumer awareness regarding the use of unfair practices, but once an unfair practice is identified, consumers perceive it negatively. The average consumer's ability to recognize the use of these practices is quite limited and, even more worryingly, consumers seem to accept the existence of unfair practices as part of their normal digital experience and have become accustomed to them. Dark patterns and manipulative personalization can lead to financial damage, loss of autonomy and privacy, cognitive burdens, mental impairments, and raise concerns for collective well-being due to harmful effects on competition, price transparency and market trust.
How was the unfair commercial practices survey conducted?
The study contributes to the existing evidence base on consumer impact through two behavioral experiments.
First, a laboratory scoping experiment tested consumers' neurophysiological and psychological responses to unfair practices in three Member States (Italy, Germany and Spain) with 120 participants. This is believed to be the first experiment using neurophysiological measurements to understand evoked responses to dark patterns and manipulative personalization practices. Experimental results showed that "forced action combined with personalization" not only hindered the extent to which participants could successfully perform a common daily task online, but also increased their heart rate when engaging with the pop-ups, possibly related to increased anxiety and vigilance. It also resulted in the highest levels of manipulation and frustration reported by participants. In the case of "confirmshaming", the participants did not have problems performing the task, nor any significant emotional effects, suggesting some degree of habituation to such practices. In the case of “interface interference” (preselection and misleading question), although participants' ability to complete the task was negatively affected, significant neurophysiological effects were found.
Second, the online experiment tested the impact of unfair practices on consumer decision-making in six Member States (Bulgaria, Germany, Italy, Poland, Spain, Sweden) with 7,430 participants. The experiment demonstrated whether exposure to dark patterns drives consumers to make choices they would not otherwise make, ie. whether it caused a violation of rationality. The results show that “hidden information”, “emotion play” and “emotion play combined with personalization” influenced consumers' transaction decision and led to a mismatch with their preferences. Moreover, "hidden information" increases the degree of inconsistency to a greater extent than other practices. The experiment also reveals that not all users are equally susceptible to the effects of these practices. Overall, vulnerable users are more likely to make inconsistent choices (50.89%) than the average (47.24%) when exposed to dark patterns.
What changes to expect in European legislation, based on the survey, in relation to unfair commercial practices?
The legal assessment carried out for this study shows that the regulation of unfair commercial practices in the digital environment falls at the intersection of consumer protection, data protection and other relevant tools in the EU legal framework, including new and upcoming legislation such as the Digital Services Act , Digital Markets Act, AI Act and Data Act. The study concludes that despite a strong EU legal framework, some legislative adjustments may be needed to better address dark patterns and manipulative personalization.
Regarding safeguards against unfair practices, the experimental results of this study show that transparency-based measures are ineffective in countering dark patterns and manipulative personalization practices for both average and vulnerable users. Instead, remedies that have greater potential to reduce harm to consumers include banning the most harmful practices not yet on the EU blacklist and imposing a fair/neutral design obligation on traders . Furthermore, the distribution of the burden of proof or argument may need to be rethought to rebalance systemic digital asymmetries. However, remedies should go beyond regulatory interventions and directly involve business and the design community, for example by developing guidelines and practical examples that allow them to determine whether the practices they are considering may be unfair. In this context, the behavioral taxonomy proposed in this study can contribute to a better understanding of whether a practice can be problematic due to the choice architecture it modifies and its impact on the decision-making process of consumers. The combination of these measures can help strengthen a digital environment where marketers take more responsibility towards consumers.
Changes to Alternative Dispute Resolution (ADR) and unfair commercial practices?
One of the expected changes that the EC proposed for Directive 2013/11/EU, which deals with the resolution of consumer disputes, is that the subject of these disputes will now also be unfair commercial practices. Until now, one of the criteria for the existence of a consumer dispute was that it arose on the basis of the purchase of a product or service. With the new changes, there will no longer need to be a concluded transaction between a consumer and a trader, a dispute can arise and be resolved based on pre-contractual information, i.e. information that concerns a future purchase and that can be found on the trader’s website.
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