Source: Radio New Zealand
A woman shops online from her phone. Unsplash/ Vitaly Gariev
What’s being termed ‘dark patterns’ are becoming increasingly prevalent on shopping websites as online businesses scramble for your dollars
Subscriptions that are impossible to cancel, hidden fees added at the checkout, and constant offers of discounts in exchange for your personal information – dark patterns are the internet traps designed to make you spend more money.
While not explicitly illegal, they’re getting overwhelming.
Last month, food delivery company Hello Fresh was fined $845,000 for misleading its customers, and if you’re online shopping this Christmas, you need to be on the lookout.
“It’s things like hidden fees, where you make a purchasing decision, get to the checkout, and suddenly there’s $20, $30, $40 extra,” said Consumer NZ’s Chris Schulz.
“It’s things like scarcity cues … everyone’s seen those, ‘only one left at this price’ notes, and then there’s subscription traps, everyone’s had a meal kit delivery service or a gym membership that they just can’t be bothered to cancel because you know it’s going to be painful.”
Consumer NZ has just released a report detailing its research on dark patterns.
The overwhelming feedback from research participants was frustration, said Schulz.
“[Dark patterns] have a triple impact, they take our money, people told us they have spent more because of dark patterns… they waste our time, some dark patterns are designed to keep us engaged longer on sites or to stop us from going elsewhere.
“They just affect our confidence as well; they chip away at how people feel, especially if you’re in a less confident bracket.”
Some dark patterns also invade our privacy.
“You’ll often get these offers, ’10 percent, if you sign up,’… and then you’ll have to put in your name, you’ll have to put in your address, your date of birth, whether you’re male or female or other, sometimes even more than that.
“Then these companies have information on you, we know they can use that data to target advertising.”
But dark patterns are also incredibly effective.
Alex Sims, a commercial law professor from Auckland University, said a study that monitored websites found those using dark patterns had double the participation rate than websites that didn’t. When there was an aggressive use of dark patterns, participation quadrupled.
But Sims doesn’t think we need new laws, because the Fair Trading Act and the Privacy Act, while not explicitly defining the shady sales tactics, already cover most dark patterns.
“The main one is under the Fair Trading Act, where businesses cannot be misleading, deceptive and mislead people about price… quite a few of the dark patterns are misleading, so therefore breach the Fair Trading Act.”
Under the Privacy Act, if information about an individual has been collected in an unfair manner, then that individual has grounds to lay a complaint, she said.
“Say, for example, you want to buy a pair of shoes… you go to the checkout, and then it says, ‘create an account,’ and it requires your email address, your phone number, and all these other things that you don’t want to give.
“Arguably, you could say that’s not fair because the only way that you could buy those shoes is to enter that information.”
The reason why dark patterns have become so prolific isn’t because of a lack of laws, she said, but a lack of enforcement.
“Even if [companies] do go to the extreme end… what will happen is normally the Commerce Commission will come along, write a letter and say, ‘look we’re investigating this,’ and often if the company goes ‘oh look I’m really sorry we didn’t realise we won’t do it again,’ [and] sometimes the Commerce Commission will keep on going but most of the time they won’t.”
But it’s also a matter of resourcing; taking legal action uses a lot of time and staff, and it’s expensive. But while providing the Commerce Commission with more resources would be a good idea, she said, there is some onus on consumers as well.
“First of all, what they should be doing is when they experience dark patterns, is stop using that website, and that’s what the Consumer NZ report actually identified… almost 40 percent of people had stopped using [those] websites.”
Sharing your bad experience is also helpful, and people can also make a complaint to the Commerce Commission.
“That’s why Hello Fresh was actually prosecuted because a whole lot of people complained… if the Commerce Commission doesn’t know anything about it, it can’t do anything.”
The Hello Fresh case centred around cold calls made to customers between February 2022 and July 2023, where customers were offered vouchers without being told that accepting them would reactivate their subscription to the service.
While this case was still before the courts, Consumer NZ was conducting its study on dark patterns and had participants try to cancel a Hello Fresh subscription.
At the time, this was a five-step process.
Hello Fresh has since updated its subscription services, telling Consumer NZ it streamlined and simplified its cancellation process in the wake of Consumer’s research.
But these kinds of sales tactics remain rife, and in this episode, Sims tells The Detail what tweaks to existing laws she thinks would help tackle the issue.
“With the Privacy Act, have it so when someone has signed up to social media or something like that, that the highest privacy preservation settings are set … and then allow the user, if they want to, then to share it more.
The second one is to prevent nagging, which Sims explains is when little boxes saying ‘buy this now’ or ‘enter your email for a discount’ keep popping up while a shopper is on a website.
“In Europe, the GDPR (General Data Protection Regulations) and the Data Act say basically you can’t do that and you’ve got a set time period, so you can’t ask them more than say once every year,” she says.
Then there’s the tweak to prevent subscription traps. Sims says it should be as easy to cancel a subscription as it was to sign up for it.
But amidst the frustration and anxiety these dark patterns cause, there is hope that it could encourage consumers to return to in-store shopping.
Schulz hopes that is the case.
“There is something about that experience.
“I love talking to shopkeepers, you don’t get that experience when you’re online, sometimes you can have really good conversations… I think that could be an upside.”
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
