Dark patterns and behavioural science: Where’s the ethical line?

Marketing should always be, by design, persuasive. 

It’s all about encouraging consumers to choose and engage with your brand – or take a specific action that aligns with your organisation’s goals.

Behavioural science is a powerful tool in this pursuit. When applied thoughtfully, it can help marketers predict behaviours and gently guide consumers toward their brand.

But what happens when a light nudge turns into something darker – even manipulative? Where is the line? And how can marketers avoid crossing it? 

These were the questions explored at the recent ADMA panel at South by Southwest (SXSW) in Sydney. We sat down with panellist Dan Monheit, Chief CX thinker at Thinkerbell, and Rob Nicholls, ADMA’s Manager of Regulatory and Policy, to unpack the conversation further. 

Understanding dark patterns

At their core, dark patterns exploit psychological biases to nudge consumers into decisions they might not otherwise make. 

These tactics can be subtle – think highlighting a ‘most popular’ option. Or, at the other end of the spectrum, not-so-subtle – such as purposefully over-complicating the unsubscribe process.

As Nicholls puts it: ‘It’s the difference between exposing a customer to a product they didn’t know they wanted and persuading them to do something that’s not in their best interest.’ 
This dilemma isn’t new. But it’s becoming increasingly insidious. 

According to research by the American Federal Trade Commission, there has been a marked rise in dark patterns, particularly design practices meant to trick consumers into subscriptions, payments or giving up their privacy.

It’s these sorts of practices that blur ethical boundaries – and land brands in hot water.

Ethical persuasion vs manipulation: Where do we draw the line? 

We know dark patterns are deceptive and unethical.
 

But if we use behavioural economics to understand (and, ultimately, influence) customer behaviour, it can feel like there’s a grey area. 
 

Where exactly is the line between persuasion and manipulation? 

Dan explains: ‘As marketers, our job is to influence behaviour. We’re trying to work out what we can do to get a customer standing in a supermarket, for example, to reach for our product over the product next to it. Behavioural science is a tool we can use in those efforts, and like any tool, it can be used for good and bad.

‘Where the line is drawn depends on whether customers would be okay with what you’re doing if they knew.’

For Dan, the acid test lies in transparency. If you label a product in your range as ‘most popular,’ it must be true. Customers generally don’t mind being guided toward the most popular choice. 

‘But if that isn’t true,’ he continues, ‘and you’re actually highlighting the most expensive product, then adding a ‘limited time only’ banner to encourage them to buy it – that crosses the line. And it’s those sort of tactics that eventually erode customer trust.’ 

Rob agrees, emphasising the importance of integrity. ‘I often advise marketers to ask themselves: Would I want my mum to be on the receiving end of this approach?.’

The pitfalls of shady strategies

Both Rob and Dan agree that while short-term gains might tempt some marketers to experiment with questionable techniques, the long-term concequences simply aren't worth it.

The most immediate risks? Loss of trust – and a damaged reputation.

Dan provides an illustrative example. 

‘Imagine designing packaging for a new brand of potato chips. You don’t outright claim they’re organic, but you use green colours and leaf imagery to imply they’re natural, healthy and sustainable. Sooner or later, a customer will read the ingredients and realise it’s all a facade. 

‘That’s when you find yourself on a “shonky awards” list or at the wrong end of a PR storm. The long-term fallout will far outweigh any short-term sales boost. You can’t continually fool people and expect to stay in business.’ 

Rob echoes this sentiment: ‘There’s a clear distinction between persuasion and manipulation, and customers can tell the difference. If your goal is to just close a sale, quick-win strategies might seem appealing. 

‘But brands seeking customer loyalty cannot afford such tactics. They erode trust, which is the foundation of sustainable success.’
And there’s research to back this up. 

According to findings by customer research platform Dovetail, 56% of consumers have lost trust in a website or social media platform because of its manipulative practices – while 43% of online shoppers stopped buying from retailers due to dark patterns.

And the risks aren’t just reputational. 

As Rob explains, ‘There are substantial financial and regulatory disincentives for using dark patterns.’ 

The Australian Competition and Consumer Commission (ACCC) is cracking down on deceptive practices, with recent cases highlighting the stakes.

The ACCC took action against Coles and Woolworths over misleading ‘Down Down’ promotions, where prices were artificially inflated before being ‘discounted’ to give the illusion of savings.

And in the Trivago case, the platform faced significant penalties for showcasing hotels that provided the highest commissions rather than the cheapest options.

‘But the law is the floor,’ Rob says. ‘Best practice means doing what’s right for your customers – not just staying within legal boundaries. Think of it less as regulatory action holding you to account, and more as your customers doing so. When they’ve had enough and call in regulators, it’s a sign you’ve already lost their trust.’

Building loyalty through ethical marketing

So, how can marketers ensure they stay firmly on the right side of the ethical line?

For both Rob and Dan, the answer lies in creating value for customers while maintaining honesty and integrity. 

Below, they outline their key tips for success: 

1. Put yourself in your customer’s shoes 

Always keep your customers’ best interests front of mind.

‘Ask yourself, Why am I trying to persuade a customer of this?’ says Rob. ‘Most of the time, it’s because you genuinely believe it’s the right choice for them. But if it’s not, you need to ask yourself why you’re pushing it at all.’

Remember to consider whether you’d be comfortable being marketed to in the same way. The moment your tactics start to feel questionable, rethink your approach.

2. Be clear and transparent

Make sure your customers understand what they’re doing and why. And be upfront about your processes and intentions. 

For instance, provide easy-to-read privacy policies without jargon. This shows you’ve got nothing to hide and builds trust through openness.

Another example: Ensure pricing and promotions are straightforward. If you’re running a limited-time offer, make the terms clear and adhere to them. 

This kind of transparency doesn’t just build credibility. It becomes a key part of ethical persuasion.

3. Test your approach with focus groups

Use focus groups and A/B testing to see how real people respond to your strategies – particularly those that may tread close to dark patterns but aren’t intended to deceive.

‘Most consumers understand what’s going on,’ says Rob, ‘but there are tactics they’re comfortable with and others they’re not. If you want to know the difference, ask them!’ 

Testing helps ensure your approach aligns with customer expectations and avoids crossing ethical boundaries.

4. Don’t be afraid to influence 
Don’t let the fear of crossing boundaries prevent you from leveraging behavioural principles in your marketing. Trust your instincts. You’ll be able to feel when you’re crossing the line.

‘It’s impossible not to influence people’s decisions in marketing – the way we think and navigate through the day relies on these principles,’ says Dan. ‘We’d be crazy not to learn how to use them effectively, for the benefit of the business and the customer.’

Ready to master the art of ethical persuasion? ADMA offers courses on everything from behavioural economics to privacy and compliance. 

Explore the full course catalogue now.