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12 February 2025
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poland

Dark patterns are everywhere – and the authorities know about it

The fight against dark patterns is gaining momentum among national consumer protection authorities, actively supported by the European Union. The Digital Services Act (DSA) is just one of many ways to protect European consumers. Penalties for non-compliance can be severe and the risks for businesses are increasing. What should we expect in the future?

"Dark patterns" (also referred to as "deceptive interfaces") refers to a variety of unfair practices used by businesses in the digital sector to exploit consumers. They all typically combine psychological, design and marketing tactics to manipulate consumer behaviour. These methods, often graphical in nature, are implemented within the user interfaces of websites or applications, with the primary goal of boosting the profits of unscrupulous businesses.

The concept of "dark patterns" was created by Harry Brignull, who began to collect and present examples of these practices on his website. In Europe, the problem was recognised by consumer protection authorities, including the European Commission. In its 2020 release "New Consumer Agenda. Strengthening Consumer Resilience for Sustainable Recovery", the EU pointed out that "commercial practices that disregard consumers' right to make an informed choice, abuse their behavioural biases, or distort their decision-making processes, must be tackled. These practices include the use of 'dark patterns', certain personalisation practices often based on profiling, hidden advertising, fraud, false or misleading information and manipulated consumer reviews."

Common types of dark patterns include "obstruction" – the use of obstacles by a website or application to prevent a customer from taking some action (e.g. cancellation of a paid subscription), "confirmshaming" – manipulating consumers' emotions to influence decisions they would not otherwise make, "fake urgency" – influencing consumers' decisions with fake timers, or "sneak into basket" – secretly adding products that the consumer has not ordered to the shopping cart.

Such practices are banned in the European Union. They are prohibited by, among others, Directive 2005/29/EC concerning unfair business-to-consumer commercial practices (which prohibits misleading practices) and Regulation 2022/2065 (Digital Services Act). They violate the collective interests of consumers and can be prosecuted by either national consumer protection authorities or consumer organisations in class actions. In extreme cases, they may even constitute the crime of fraud and their perpetrators may be subject to criminal liability.

Consumer protection authorities are increasingly punishing businesses that use dark patterns. In Poland, the President of the Office of Competition and Consumer Protection (UOKiK) has so far issued six decisions in which he explicitly stated that the practices of businesses are dark patterns. In total, he has imposed nearly PLN 40m in fines on them. Dark patterns are also being prosecuted in other countries. In July 2024, the UK CMA obliged Wowcher to refund more than GBP 4m to customers who were harmed by the use of dark patterns.

Dark patterns are increasingly coming under scrutiny from consumer protection authorities, and businesses that use them are facing rising penalties. It is worth bearing this in mind when designing the interface of an online store or application. Involving lawyers early in the development process is essential to ensure compliance and avoid potential penalties.

author: Krzysztof Witek

Krzysztof
Witek

Attorney at law

poland