‘Dark Patterns’ in online design

It is simple enough to sign up to Amazon’s paid subscription service, ‘Prime’: a single click on the checkout path is often all it takes to obtain a free one-month trial with automatic renewal. (Indeed, the UK’s Advertising Standards Authority banned the design of a web page in Amazon’s checkout path in 2019 on the basis that it was misleading and could result in people signing up to Amazon Prime unintentionally.) However, once onboard as a Prime member, cancelling Amazon’s Prime service can prove an overly complicated affair. As a recent report commissioned by the Norwegian Consumer Council (NCC) notes, “the process of cancelling an Amazon Prime subscription is riddled with a combination of manipulative design techniques”.

Known in the tech industry as ‘dark patterns’, ambiguous navigation options, confusing text, convoluted navigation paths and repeated nudges that challenge a user’s intentions are deliberately implemented within a user interface design to keep users bound to a service—in the case of Amazon, to keep customers paying a monthly subscription for the Prime service. As the NCC’s report notes, these manipulative design features undermine consumers’ ability to make free and informed choices.

In the EU, the Unfair Commercial Practices Directive (UCPD) and related regulations enable national enforcers to curb a broad range of unfair business practices such as the misleading of consumers or the employing of aggressive marketing techniques to influence their choices. Under the UCPD, a commercial practice is always considered unfair if it is misleading (Articles 6 and 7) or aggressive (Articles 8 and 9) or if it leads the average consumer to make an economic decision that they would not otherwise have made.

In the UK, the UCPD was implemented by means of the Consumer Protection from Unfair Trading Regulations (SI 2008/1277) (CPUT), which remains in force as retained EU law following the UK’s withdrawal from the European Union. CPUT Regulation 7(2) includes among its non-exhaustive list of factors that might be considered as aggressive, and thereby potentially unlawful, practices, “any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader”.

Given the scope and reach of CPUT, the NCC’s complaint against Amazon for its Prime cancellation design may yet become the subject of separate action in the UK too. Whether or not it does, the NCC’s report should serve as a warning to businesses to ensure that their online cancellations and returns procedures do not employ unduly onerous, disproportionate or aggressive design techniques or practices.