Nowadays the people can easily fulfil their wishes via various online platforms, websites just in a few seconds. But the more the technology progresses the more questions will arise whether we are able to purchase services safely or we are the victims of shady manipulation tactics which are intended to influence us and which the average consumer hasn’t got much chance to recognize on his own. Algorithms provide personalised services, and, in this context, comfort functions tailored to consumer needs. Moreover, data-driven technologies enable businesses to micro-target consumers with advertising and personalised offers, monitor competitors’ prices more easily and this comfort may give the people false sense of safety. In this essay I will talk about the importance of recognizing the dark patterns and how they are being used in the practice.

Dark patterns

There is currently no legal concept of what “dark patterns” are. The original term was created by Harry Brignull, founder of darkpatterns.org, who defined it as “tricks used in websites and apps that make you do things that you didn't mean to, like buying or signing up for something”.^[1] „It can also be referred to as online interface or a part thereof that via its structure, function or manner of operation, subverts or impairs the autonomy, decisionmaking, or choice of recipients of the service.”^[2]

These patterns and practices sometimes use aggressive psychological pressure which is defined in the UPC Act as „A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence for exploiting a position of power in relation to the consumer so as to apply pressure, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct and the consumer’s ability to make an informed decision with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.” Naming the different kinds of these patterns is quite difficult, but there is a table^[3] that can provide reliable information:

In conclusion, we can sum up^[4] these patterns:

1. Pressure. This concerns dark patterns, which pressure a consumer to share more personal data than intended to continue using a service or product. For example, pressuring to allow permissions or pressuring to receive marketing.
2. Hinder. This involves those practices that delay, hide, or make it difficult for the consumer to adopt privacy protective actions. For example, difficult or hidden settings, or privacy invasive defaults.
3. Mislead. The use of language, form, and interface elements to mislead consumers while taking privacy related actions. For example, double negative, ambiguity, or framing.
4. Misrepresent. The misrepresentation of facts to induce consumers to share more personal data than intended. For example, false necessity or false experience improvement.

Recognised and justified cases from the Hungarian case law

The main problem of dark patterns is that they don’t emerge in isolation, moreover chances are that they are in a combination with each other, making it much more burdensome for the average consumer to recognize them. Speaking of the difficulty of their recognition, due to their manipulative nature, it is hard to prevent the unwanted manipulation and influence. However, here in Hungary, the Hungarian Competition Authority (HCA) – in my point of view – does an excellent job of providing useful information via podcasts and case analyses.

Wizz Air case

The Hungarian Competition Authority has launched an investigation against the airline Wizz Air, as it is believed to be misleading consumers towards its premium services during the purchase of tickets. The airline is believed to withhold (or disclose late) important information from the point of view of consumers' decisions on its online platforms in order to influence ticket buyers in the direction of more expensive options.

According to the suspicion, the company is hiding from consumers that they have the option to supplement the cheapest package option by ordering priority service or checked baggage. In connection with some higher-cost package options, the company may misleadingly claim that "it can be even more expensive" if you reserve a seat only at check-in - this is probably true only for other, cheaper package options. In addition, during the online passenger check-in process, the company was able to use misleading names and other technical solutions to enable consumers to select premium seats.

Here we can see, that the “sneaking”, “interface interference” and “social proof” was used in order to mislead the consumer and make a bigger profit. ^[5]

Szállás.hu case

The Hungarian Competition Authority found the operating practices of Szallas.hu to be unlawful, as the accommodation search engine exerted psychological pressure on consumers with its urgent messages. The competition authority obliged the company operating the service to a complex set of measures.

The investigation by the Competition Authority revealed that urgent information appearing on the website and mobile application of Szallas.hu (e.g. "Four people are planning to book here." "Just 38 people are looking." "There are only 2 rooms left on our site!") are considered illegal. Due to the way they appeared, the messages used psychological pressure to convey to consumers that the accommodations they were looking for were only available to a limited extent. This method, which is considered an aggressive commercial practice, disrupts the decision-making process of users and can significantly limit their ability to make an informed choice.

As the aforementioned practices are explained, we can observe the working of “nagging” and the “urgency”. ^[6]

Booking.com case

The Hungarian Competition Authority imposed a HUF 2.5 billion fine on the operator of the online accommodation booking portal booking.com, and also banned the Dutch company from continuing its aggressive sales methods. According to the decision of the competition authority, Booking.com B.V. engaged in unfair commercial practices towards consumers by, among other things, misleadingly advertising some of its accommodations with the option of free cancellation, as well as aggressive psychological pressure to make a reservation as soon as possible.

As a result of the competition supervision procedure launched by the Competition Authority in 2018, it found the commercial practice on the website to be unlawful in three respects:

• in the television and internet advertisements promoting the service, the company particularly emphasized the "free cancellation" of the accommodations. In fact, in the case of many accommodations, consumers could only use this option for a limited time, and they also paid a higher price than for the same accommodation without "free cancellation", i.e. the price of the free cancellation was included in the price of the accommodation concerned.
• In connection with the accommodation offers available on Booking's website and mobile application, at each step of the accommodation search and booking process, it published urgent information (displayed in a striking color, font size or other emphasis) (e.g. "32 more people are looking"; "Someone is considering to book this accommodation", "Highly sought after! 17 bookings have been made here in the last 24 hours", etc.), which give the consumer the impression that the accommodation they are looking for is very popular and has limited availability. This practice lends itself to psychological pressure and disrupts the consumer's decision-making process. Similar messages subconsciously evoke such emotions and fear in consumers that if they do not book the accommodation as soon as possible, they may miss it (a phenomenon described in the literature as the FOMO effect). All of this distorts the consumer's business decision.

The company did not act with the expected professional care when displaying the offers of accommodation providers in Hungary when displaying the Széchenyi Pihenőkártya (SZÉP Card) as a preferred means of payment. Consumers were not able to detect the availability of this payment method in the same way and place for all accommodations accepting the SZÉP Card, which could also distort their decision. ^[7]

Conclusion

As we saw, it is particularly difficult to recognize the various forms of dark patterns. But the way I see it, the average consumer is not helpless against these forms of manipulation. We must use the Internet and online services with a high level of awareness in order to not become victims of undue and unwanted manipulation.

Author:  Dominik Boros, law student, University of Debrecen, Faculty of Law

References:

• Deceptive Design - user interfaces crafted to trick you
• BEUC: “Dark Patterns” and the EU consumer law acquis, 2022, 6.p
• Francisco Lupiáñez-Villanueva, Alba Boluda, Francesco Bogliacino, Giovanni Liva, Lucie Lechardoy, Teresa Rodríguez de las Heras Ballell April 2022: Behavioural study on unfair commercial practices in the digital environment: dark patterns and manipulative personalisation, 30.p
• Jarovsky, Luiza, Dark Patterns in Personal Data Collection: Definition, Taxonomy and Lawfulness (March 1, 2022). 29-32.p
• VJ/1/2023.
• VJ/41/2019.
• VJ/17/2018.