‘Dark patterns’ in the spotlight: here’s what every Aussie marketer needs to know 

Smart marketing? Or misleading and deceptive? 

It’s a fine line. One that should compel every marketer to learn about ‘dark patterns’, so they can stop or avoid practising them moving forward.  

Put simply, dark patterns are marketing techniques that deceive, steer or manipulate users into making choices that benefit an organisation – but that can harm the consumer or go against their intent. 

We spoke with Peter Leonard, Chair of ADMA’s Regulatory and Advocacy Working Group, and Sarla Fernando, Director of Regulatory and Advocacy at ADMA, about the growing interest in dark patterns – and what you can do to maintain consumer trust in a changing regulatory landscape. 

Facing new frontiers in marketing law 

Last month, 33 states in the USA launched a new legal action against Meta.  

Their claim? That Meta knowingly used ‘harmful and psychologically manipulative product features’ to lure children and teens into using Instagram compulsively and for extended periods of time.  

At first glance, nothing seems particularly unusual here. After all, doesn’t Meta face a new lawsuit almost every other week? 

But two distinct factors are at play this time around. 

Firstly, the prosecutors’ deliberate choice to zero in on ‘manipulative’ marketing practices that are said to cause harm. And secondly, to not pursue those behaviours by applying data privacy laws. 

This case – and others like it – signals growing regulator interest in the use of dark patterns in digital spaces to influence consumer choices. And it foreshadows an expansion of regulatory approaches to eradicate those behaviours. 

‘Governments aren’t just looking at whether an action is misleading or deceptive,’ explains Sarla Fernando, Director of Regulatory and Advocacy at ADMA. ‘They’re also looking at the practices leading up to those misleading and deceitful actions.’ 

Dark patterns Down Under: A fine balance 

Some dark patterns are already prohibited under Australian Consumer Law. But not all. 

That’s why the Federal Government is consulting on several pieces of legislation to minimise consumer exposure to dark patterns – whether done deliberately or otherwise.  

And that’s where things get tricky.  

‘To regulate unfair practices, we must clearly identify the point at which persuasion becomes manipulative enough for legal intervention,’ explains Peter Leonard, Chair of the ADMA’s Regulatory and Advocacy Working Group. 

‘And that’s a difficult-to-define line. After all, some people hold the view that all forms of advertising are manipulative. 

‘So the government needs to find the right balance between not creating too much litigation – and giving people a right of action through the courts to hopefully improve business behaviour.’  

The different faces of dark patterns  

In trying to understand when persuasion might become manipulation, it helps to think about how dark patterns manifest – and, importantly, why. 

According to Sarla, there are two ways dark patterns might appear in your marketing. 

‘Dark patterns can reflect website design choices that unduly influence the customer journey. Or they might appear in the way that customer data is solicited and collected. 

‘In all cases, it’s about the difference between persuasion and manipulation. If an online service is tricking or guilting customers into providing data or consenting to data collection beyond that reasonably required to provide a service, that’s a sign that a dark pattern could be present. 

‘Similarly, if you’re visually embellishing a product option to encourage buyers into picking it over others, you may be manipulating them into a choice they never wanted in the first place.’ 

While it’s not always easy to identify dark patterns, there are some behaviours already considered problematic, like: 

• Nagging: Repeatedly interrupting your website visitors with requests to do something through a pop-up or an automatically playing video. 

• Pre-selecting: Setting certain actions that are favourable to your company as default – like pre-selecting the option for customers to receive your newsletter. 

• Confirm shaming: Using guilt to manipulate customers into a choice, such as writing ‘No thanks, I hate saving money’ instead of just ‘no’ on a discount offer. 

You’ve likely been on the receiving end of these techniques before – or maybe even used them yourself. Marketers have been practising them for years, wittingly or unwittingly.  

This begs the question: Why are these marketing techniques suddenly in the spotlight? 

‘Dark patterns are more prevalent today because of the increased extent to which companies can gather data about an individual,’ explains Sarla.  

‘When paired with the rise of digital channels being used for sales and marketing, a business’ ability to create personalised messages that appeal emotionally or psychologically to an intended target is accelerating.’   

So, while dark patterns have always existed, the rise in sophisticated data uses is making them more prevalent. This leaves consumers more vulnerable to potential harm – and causes governments to take notice.  

What this means for Australian marketers 

Dark patterns are almost as old as time itself. Consider, for example, the placement of chocolate bars and gum at every grocery checkout the world over.  

But with the rise of digital transactions and our advanced ability to harness data with unprecedented sophistication, the marketing profession faces a crucial re-evaluation.  

We must question whether certain tactics are genuinely clever marketing – or simply good old-fashioned trickery. And ideally, we’d tackle that re-evaluation proactively before legislation forces us to. 

If you need more convincing that evaluating dark patterns in your marketing is worth the time, consider recent findings from the Consumer Policy Research Centre. This research found that 30% of Australians surveyed stopped using a website or app – either temporarily or permanently – because of dark patterns. 

So, reducing manipulative marketing techniques isn’t just good legal sense. It makes good business sense, too. 

Here are three things to consider in your next project: 

1. Do your visual marketing techniques trap or trick people into making a decision? 

2. Is the customer journey clear and transparent? 

3. Are you being creative and clever without manipulating or tricking? 

Finally, now that you know what dark patterns are, we challenge you not to see them online. Your observations may surprise you. 

Does your team need support with marketing compliance? Enrol for ADMA's final Privacy and Compliance for Marketers course for 2023. Get ahead of the upcoming regulatory changes today.