Sneaking profits, hidden patterns: Dark patterns

27 August 2023

In our history as users of the internet and digital platforms, we have not had the best track record when it comes to holding companies accountable for sneaky tactics online.

10 years ago, a webcomic (either Ctrl Alt Del or Questionable Content) had a terms and conditions that all users’ souls belonged to the webcomic. In a similar vein, on April 1 2010, GameStation added a ‘Immortal Soul Clause’ in their Ts&Cs which 88% of users did not read, the other 12% of users received a 5 pound voucher.

Further complicating matters is the legal grey area which tech has always existed in, with companies doing things first, people noticing, then laws catching up. A recent example was Zoom trying to sneak in AI training to the latest Ts&Cs before quickly back-pedalling and removing it when it was picked up on by savvy readers. Or in the gaming world, Diablo IV’s Battle Pass sitting in close proximity to the Season Journey meaning that users accidentally redeemed their Battle Pass by mistake.

What are Dark Patterns?

According to the website Deceptive Patterns here are some of the types below. A plain text description has been added to make it easier to understand for the every day internet user. For the real definitions, please see Deceptive Patterns in the sources.

• Comparison prevention: makes it difficult to compare products
• Confirmshaming: manipulation of users eg. A small puppy will die if you don’t share your data with us. Oh, what’s that? You hate saving money, ok don’t click this deal.
• Disguised ads: Looks real, but surprise ad! Influencers can be fined for this now and were incredibly prolific before there was a monetary penalty.
• Fake scarcity: quick, selling soon! Only one more left. Except there’s lot’s of stock left we don’t want you to know about
• Fake social proof: fake reviews on products to make it seem better than it is
• Fake urgency: limited time only! Save 15% off for the next 5 minutes! But this fake sale never actually ends
• Forced action: You want to do this, but watch this ad first
• Hard to cancel: Hello Fresh or pretty much all subscription services. Wikipedia calls this a ‘Roach Motel’ which is an accurate descriptor of how they feel. How many annual subscriptions have you been surprised to see pop up on your bank account after forgetting to stop after the free trial?
• Hidden subscription: Here’s a free download but in tiny writing or nowhere writing, surprise! It’s a subscription.
• Nagging: As you try to do something a pesky interruption comes up again and again. Reminscent of chat bots popping up on webpages or the paperclip from Word
• Obstruction: Making access to information or tasks just plain difficult
• Preselection: already ticked checkboxes showing the companies preferences as a default, not yours
• Sneaking: Hidden or delayed information. Extra costs in ticket prices comes to mind, or tiny font of the word ‘ad’ in influencer material.
• Trick wording: Misleading language.
• Visual interference: Information concealed to user. Terms and conditions could fall into this, because who actually reads the link or PDF given?  

How legal are they in Australia?

According to Sharon Givoni the are “not automatically illegal” in Australia. Current consumer laws are reported to be inadequate at this stage and reflect the experience which many internet users would identify with. How often have you bought tickets from one of the large ticket venders, or a short stay accommodation, to only have the end price inflated with extra fees?

The Australian Competition and Consumer Commission (ACCC) is currently investigating an overall larger inquiry into the Digital Platform Services which started in 2020 and is set to finish in 2025. This however is a long time in terms of technology, and it leaves companies the opportunity to scam people out of their money and obfuscate us with dark patterns.

Sources:

Brignull, H., Leiser, M., Santos, C., & Doshi, K. (2023, April 25). Deceptive patterns – Types of deceptive pattern. deceptive.design. Retrieved 27 April 2023, from https://www.deceptive.design/

ACCC September 2022 Digital Platform Services Inquiry Report on Regulatory Reform – Key Findings Retrieved 27 August 2023 from https://www.accc.gov.au/inquiries-and-consultations/digital-platform-services-inquiry-2020-25

Givoni, S ‘Dark Patterns User Interface That Makes Consumers Buy and Buy More What Are They and What Are the Laws? Retrieved 27 August 2023 from https://sharongivoni.com.au/dark-patterns-user-interfaces-that-make-consumers-buy-and-buy-more-what-are-the-laws-and-are-dark-patterns-illegal/

GameStation: “We own your soul” Martin, J 15 April 2010. Retrieved 27 August 2023 from https://bit-tech.net/news/gaming/pc/gamestation-we-own-your-soul/1/

E, Gach. ‘Diablo IV Fixing Bad Menu After Fans Kept Accidentally Buying Battle Pass’. 24 July 2023 Retrieved 27 August 2023 from https://www.kotaku.com.au/2023/07/diablo-iv-fixing-bad-menu-after-fans-kept-accidentally-buying-battle-pass/

BBC ‘Zoom denies training AI on calls without consent’ 8 August 2023 Retrieved  27 August 2023 from https://www.bbc.com/news/technology-66430429