Need to know
- Dark patterns – where you're fooled or forced into making selections when transacting online – come in many forms
- A new global report on the issue argues that Australians are particularly vulnerable to these online manipulations
- New legislation is expected to come into play this year aimed at stopping this unfair business practice
The steady creep of dark patterns into our daily online lives has worn down our capacity to resist, to the point where they're making our choices for us.
That's the premise of a new report from the Consumer Policy Research Centre (CPRC) – Made to Manipulate – which argues that Australians are particularly vulnerable to these insidious online traps.
The report concludes it's time for regulators to step in and do more.
Dark patterns are where you're fooled or forced into making selections when transacting online, and they come in many forms. They can make it impossible to unsubscribe from a service, or they might pre-activate unwanted options that you then have to de-select – if you happen to notice.
It's an unfair business practice that hijacks your online journey and takes you to places you didn't intend to go. With each hard-sell pop-up or default setting, the business serves its own interests at your expense.
Dark patterns take a cumulative toll. They exploit our attention in order to bring on fatigue and stress
CPRC digital policy director Chandni Gupta
One example is the multi-layered manipulations of the Derila pillows website, which CHOICE alerted consumers about last year.
For Chandni Gupta, the report's author and deputy CEO and digital policy director at the CPRC, the central question is whether dark patterns have usurped our online agency. Have we become puppets, with the platform masters pulling the strings?
In search of a global perspective on the issue, Gupta travelled to seven countries over seven weeks and spoke with 70 digital rights experts across 25 organisations. This quest for a holistic view was sponsored by the Australian branch of the Winston Churchill Memorial Trust, which awarded Gupta a fellowship.
For Gupta, dark patterns aren't just a nuisance anymore; they've become a threat to our mental health.
"Dark patterns take a cumulative toll," Gupta tells CHOICE. "They exploit our attention in order to bring on fatigue and stress.
"They're designed to wear us down, and they leave people in a really unfair space where everything is on them to navigate a digital economy that was never designed with them in mind at all."
Australians are disproportionately affected
In October last year, the federal government vowed to ban unfair business practices, including the use of dark patterns. This crucial update to consumer law is expected to happen before mid-year, but for the time being we remain at the mercy of tricks such as:
- scarcity cues – telling us there's a limited supply or time to act
- false hierarchies – making the business's preferred choice more prominent in size, placement or colour)
- nagging – pop-ups urging you to do what the business wants
- hidden costs – where new charges appear at the final stages of payment.
All of this is perfectly legal in Australia at the moment, but it's a different story in many other countries, Gupta reports.
"Other jurisdictions have had unfair trading laws for decades. And they've applied a very general prohibition in order to capture emerging issues, and dark patterns is one of them."
The most consequential piece of digital legislation to come into play recently is probably the EU's Digital Services Act (DSA), which defines prohibited dark patterns as "practices that materially distort or impair, either on purpose or in effect, the ability of recipients of the service to make autonomous and informed choices or decisions". (The DSA came into effect in October 2022, but most platforms were given until February 2024 to comply.) It's a step forward, at least for Europeans.
Australians aren't protected by the kinds of measures that other jurisdictions take for granted
CPRC digital policy director Chandni Gupta
"We have this situation where you could be using the same product on the same platform through the same provider, but someone in Melbourne is going to be having a far different experience than someone in Munich," says Gupta.
"Australians aren't protected by the kinds of measures that other jurisdictions take for granted."
Our online choices are increasingly being made for us through the use of dark patterns.
Enforcing data disgorgement
Gupta advances a number of ideas in the report to counteract online manipulation, one of which is to compel digital services providers to not only pay fines for breaking the rules (in jurisdictions where they face fines) but to also surrender the offending data.
"The model we've got is that, if a business is found to be doing something that's prohibited, they might get a civil penalty and potentially some reputational damage. However, there is nothing stopping them from continuing to benefit from the data they've collected as a result of that prohibited practice."
Data disgorgement is necessary because penalties have become the accepted cost of doing business rather than a disincentive to misbehaviour
'Data disgorgement' is necessary because penalties have become the accepted cost of doing business rather than a disincentive to misbehaviour.
Gupta cites the case of Meta reportedly setting aside €3 billion ($5.75 billion) just to pay fines for violating the EU's General Data Protection Regulation, which came into effect in 2018.
An EU 'Digital Fairness Fitness Check' in October 2024 revealed that unfair business practices such as dark patterns were costing EU consumers at least €7.9 billion ($13.8 billion) a year. Meanwhile, the cost to businesses of complying with legislation designed to eradicate them was around €737 million.
Regulators under-resourced
The lopsided numbers speak to the larger issue of the power imbalance between regulators and the major tech companies, an imbalance that's especially acute in Australia.
"You often have a regulator on a shoestring budget trying to take on a business with very deep pockets," says Gupta.
"And what we need to do is uplift the capacity and capability of regulators so that they have the tools and resources to be able to take on the market that they're actually overseeing."
In the EU, big tech businesses have to pay supervisory fees to regulators as stipulated in the Digital Services Act
She recommends 'babysitting fees' where they don't already exist – or continual contributions from big tech companies to the regulators that oversee them.
It's a model that's in place in Australia under financial regulation, but tech companies operating here face no such obligations.
In the EU, by contrast, big tech businesses have to pay supervisory fees to regulators as stipulated in the Digital Services Act.
Fueling cognitive overload
Dark patterns are doing what businesses want them to do. An experiment conducted by the Organization for Economic Cooperation and Development (OECD) in 2024 involving 35,000 participants across 20 countries showed that dark patterns have a major influence on user's online decisions, pushing platform users to spend more money.
What the creators of dark patterns seem to be trying to do is bring about cognitive overload, wearing us down mentally until we no longer resist their manipulations.
I think we are at a tipping point where dark patterns are becoming very much the norm of online experience
CPRC digital policy director Chandni Gupta
"I think we are at a tipping point where dark patterns are becoming very much the norm of online experience," Gupta says.
"There are likely younger generations who have never experienced the online world without them. And it is very much up to you as an individual to constantly push against that wave."
At the moment, the wave seems to be winning. CPRC research shows it would take approximately 30 minutes each day for Australians to adjust privacy settings on websites and apps and take other steps to evade the dark patterns that have been set.
And the trend line is moving in the wrong direction. With artificial intelligence increasingly pulling the strings, the dark patterns will only get darker.
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Stock images: Getty, unless otherwise stated.
