The European Commission, in conjunction with the national consumer protection authorities of 23 member states as well as Norway and Iceland, conducted an EU-wide screening of 399 online shops to detect potential manipulative online practices.
Also referred to as dark patterns, manipulative practices are online interfaces designed in such a way as to convince consumers into making purchase choices that may not have been in their best interest.
The retail websites checked during this screening exercise ranged from textiles to electronic products. The investigation focused on three categories of dark patterns: fake countdown timers; web interfaces designed to lead consumers to purchases, subscriptions or other choices; and hidden information. From the investigation, it resulted that nearly 40 per cent of the websites inspected contained at least one of these three dark patterns.
EU Commissioner for Justice, Didier Reynders, said these practices exploit consumers’ vulnerabilities and are clearly in breach of consumer protection legislation.
Reynders called on national authorities to make use of their enforcement capacities to take relevant action and fight these practices. In the meantime, he said the European Commission is currently reviewing the consumer protection legal framework to ensure it adequately protects consumers when shopping online.
The dark patterns screening exercise revealed that 42 out of the 399 websites monitored used fake countdown timers, thus pressuring consumers to buy specific products. This type of commercial practice is considered misleading and unfair because it falsely states that a product will only be available for a very limited time to elicit an immediate decision and deprive consumers of sufficient time to make an informed choice.
Another important finding was that 54 of the websites screened directed consumers towards certain purchase choices, from subscriptions to more expensive products. This direction was made either through the website’s visual design or choice of language.
In addition, the screening revealed that 70 websites hid important information from consumers. This included information related to delivery costs, the composition of products, or information on the availability of a cheaper option.
The Black Friday sweep involved the monitoring of the prices of 16,000 products from 176 websites over a month- Odette Vella
As a follow-up to the investigation, national authorities will ask the online traders to rectify the detected breaches, and where necessary, initiate enforcement actions according to their national procedure to ensure compliance with EU law.
In 2022, another sweep was coordinated by the commission in collaboration with 13 national authorities. This sweep focused on Black Friday sales and its main purpose was to determine whether the discounts offered to consumers by retailers were in line with EU law.
The rules stipulate that traders must indicate the lowest price applied to the product in the previous 30 days before the application of the discounted price. The main purpose of this rule is to prevent traders from artificially inflating the reference price, and thus misleading consumers about the amount of discount.
The Black Friday sweep involved the monitoring of the prices of 16,000 products from 176 websites over a month with the aim of verifying how discounts are presented online. About 50 per cent of the products monitored displayed a price reduction announcement on Black Friday.
However, the authorities found that approximately 25 per cent of the announcements were inconsistent with EU law and that violations occurred in at least 43 per cent of the screened websites.
To help national authorities investigate such a large number of products, a specific artificial intelligence-based tool was provided by the Commission in the context of the EU e-lab.
The AI tool allowed authorities to monitor the price history of the selected products and establish whether the prior price stated in the discount announcement was actually the lowest price applied to the product in the 30 days preceding the price reduction announcement.
Sweeps are coordinated by the European Commission and carried out simultaneously by national enforcement authorities in participating countries. Sweeps operate in a two-step action process. The first step is the screening of websites to identify breaches of consumer law in a given online market, and the second step is enforcement, in which national authorities request traders to take corrective action.
In the past five years, sweeps have been conducted in the following areas: price transparency and drip pricing (2018); delivery and the right of withdrawal (2019); consumer scams related to the COVID-19 pandemic (2020); misleading sustainability claims (2020); consumer credit (2021); online consumer reviews (2021); car rental intermediaries (2022); Black Friday sales (2022); and dark patterns (2022).
Odette Vella is director, Information and Research Directorate, MCCAA.
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