CMA’s recent investigations mark the start of enforcement work targeting dark patterns

The Competition and Markets Authority (CMA), the UK’s competition regulator, has launched an investigation into the mattress and bed brand company Emma Sleep and whether their online sales tactics have misled consumers. Specifically, the CMA are looking into Emma Sleep’s use of countdown timers and claims that discounted prices will end soon when this may not be the case and whether this is a breach of Consumer Protection from Unfair Trading Regulations (SI 2008/1277) (often referred to as the “CPRs”) and consumer protection. 

This marks the start of a wider programme of consumer enforcement work investigating ‘Online Choice Architecture’ aiming to tackle harmful online selling practices. Online Choice Architecture is the way in which the design of online environments affects a user’s decision-making and actions. The CMA has commented that Online Choice Architecture can be used for good, for instance: 

• by simplifying the overwhelming amount of information online
• picking out relevant products for consumers
• making our experience smoother or more intuitive

However, Online Choice Architecture can also be harmful (which is referred to as ‘dark patterns’) if it does not benefit consumers or weakens competition. The CMA will be looking at: 

• urgency tactics such as countdown clocks where a shopper is pressured into buying quickly
• discounts which catch the eyes of a consumer (eg 50% off) when the real price reduction is not as much as claimed

Although the government has not introduced specific legislation yet, EU regulators have placed a ban on the use of dark patterns by online intermediaries which offer services into the EU from February 2024 via the EU Digital Services Act ((EU) 2022/2065). 

Businesses who specialise in online retail ought to be aware of their practices when selling online. Certain practices could be considered as putting unfair pressure on people and could also break consumer protection law.