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Dark Patterns

Author: Woodfines Solicitors
Published On: 15 June 2023

Have you ever been caught out by a time limited deal whilst shopping online? Not long ago, I was. If I’d waited another day, a new offer would have saved me an extra £16 but the “offer ends tonight” email hooked me in. I was fuming when I received an email the next day specifically showing the item in question at its new, lower, price.

The Competition and Markets Authority (CMA) has published an open letter to ‘help businesses understand their obligations when making urgency claims (for example countdown timers; ‘act fast’ messages) and price reduction claims online’. The CMA’s letter urges businesses to audit their own business practices and take action if they are engaged in any of the practices set out in the letter known (rather dramatically) as ‘dark patterns’. These include:

  1. Claims that are misleading because promotions don’t end when the claims say they will (‘offer ends at midnight’ and then it continues) or because new promotions offer substantially the same deal (or better, as happened in my case). The CMA expressly says on its blog that having another comparable offer a week later would fall foul of the rules;
  1. Claims that are misleading because they create a false sense of urgency e.g. low stock messages when adequate stock is available or new stock is expected imminently, telling consumers 200 people have bought something in the past day or 50 people are viewing it now when plenty of stock is available. Either approach is intended to convey a message of scarcity, even when the trader has sufficient stock to cover demand;
  1. Comparison prices that are misleading because they no longer reflect the usual price (the item has been reduced longer than it’s been full price);
  1. Price claims that are misleading because prices have been ‘flip-flopping’ (spending as much time at the lower price as the higher one);
  1. Price promotion claims that are misleading because they omit or hide information that consumers need to know upfront e.g. spend £100 and get 25% off needs to be clearly stated up front. The initial email shouldn’t just say ‘25% off’; and
  1. Combinations of urgency claims and price reduction claims. An offer saying ‘today only! Low stock! Get 50% off!’ could be fair but only if it’s not misleading i.e. it doesn’t fall foul of any of the rules listed in the letter.

If you’re a trader selling goods, services or digital content online, it’s vital that you get to grips with your practices and ensure they are fair to consumers. This is an area the CMA is particularly interested in at present. It has yet to conclude its investigation into time limited deals practices at mattress seller Emma Sleep (which began in November 2022) but that’s not the only investigation going on. It announced an investigation into Wowcher on 31 March 2023. Watch this space for news on the outcomes but don’t delay your audit of your own practices in the meantime. For more information, including the full list of banned practices, please contact a member of our Corporate and Commercial team.

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