Dark patterns and e-commerce: the new legal risk arising from the Digital Fairness Act

Dark patterns and e-commerce: the new legal risk arising from the Digital Fairness Act

E-commerce has evolved into highly sophisticated environments designed to increase conversion rates and optimize commercial performance. However, certain persuasive design techniques have crossed the line, becoming manipulative practices known as dark patterns.

With the forthcoming approval of the Digital Fairness Act (hereinafter, the “DFA”), these practices will move from being merely a reputational issue to constituting a legal risk for any e-commerce operator, reinforcing the protection of digital consumers and expanding the scope of obligations already established under current legislation.

Key developments introduced by the Digital Fairness Act

The purpose of this new regulation is to respond to the growing sophistication of digital manipulation techniques. Although European legislation already prohibited misleading commercial practices and material omissions, the DFA introduces three major enhancements:

• Explicit regulation of interface design, by directly addressing the manipulation of user behavior through the design of digital interfaces. The regulation acknowledges that digital architecture can shape and influence economic decisions.
• Enhanced protection against the exploitation of vulnerabilities, with particular attention to vulnerable consumers, such as minors and elderly individuals.
• Coordination with other digital regulations, integrating the DFA into a broader regulatory ecosystem that includes the Digital Markets Act and the General Data Protection Regulation. A single interface design may simultaneously generate risks in the areas of data protection, competition law, and consumer protection.

What types of practices are considered dark patterns?

Dark patterns are design techniques that induce users to make decisions they would not have made under conditions of transparency and informational balance.

However, not all forms of persuasion are unlawful. The legal threshold lies in the manipulation or significant distortion of the consumer’s economic behavior.

Among the most relevant practices are the following:

1. Confirm shaming, which involves the use of messages designed to embarrass or pressure users into accepting an option that they would likely reject under neutral conditions. This mechanism relies on emotionally charged language that introduces an affective bias into the decision-making process. By associating the rejection option with a negative or socially undesirable connotation, it subtly undermines the consumer’s freedom of choice.
2. Cancellation obstruction, which occurs when subscription or sign-up processes can be completed in one or two clicks, while cancellation requires multiple steps, opaque forms, complex navigation paths, or even mandatory telephone contact.
3. Artificial scarcity and time pressure, through messages such as “Only 2 items left” when such statements are not supported by real or verifiable data. These practices accelerate purchasing decisions by exploiting urgency bias and fear of missing out, thereby limiting the time available for rational evaluation.
4. Visual interference, consisting of interface designs that disproportionately highlight the option most favorable to the company while minimizing the consumer’s alternative. This may be achieved through large buttons, striking colors, prominent placement, or high visual contrast.

Sanctions for engaging in prohibited practices

Furthermore, the entry into force of the Digital Fairness Act increases enforcement risk. In line with other European digital regulations, sanctions may be calculated as a percentage of total annual global turnover, meaning that large platforms may face multi-million-euro fines for engaging in such practices.

In addition, national consumer authorities may require the withdrawal or modification of interfaces within short timeframes, which entails a direct operational impact, such as urgent redesign, suspension of campaigns, and possible effects on conversion rates.

In addition, The strengthening of the regulatory framework facilitates the initiation of collective actions by consumer associations, thereby increasing companies’ exposure to both judicial and reputational consequences. In this context, businesses may face not only investigations by the competent authorities but also coordinated litigation strategies aimed at challenging and contesting manipulative digital practices.