Understanding Dark Commercial Patterns – Turkey
Dark Commercial Patterns (“dark patterns”) refer to deceptive and manipulative tactics exercised by businesses and advertisers to influence consumer behaviors and preferences. These tactics often exploit individuals’ psychological vulnerabilities, manipulate their emotions, and exert pressure to make decisions they might not otherwise have made. While there is no strict legal definition for dark patterns, these patterns are widely recognized as unethical practices that undermine the principle of transparency and although many implementations are accepted as one, the primary objective of a dark pattern is considered to have an effect on consumers’ will.
The main key elements of dark patterns are accepted as manipulation, deception, pressure, influence on free will, and the exploitation of vulnerability. These elements may manifest in various forms, but their primary objective is to establish dominance over consumers. For instance, online retailers frequently use countdown timers during sales to create a sense of urgency and encourage impulse purchases. With this tactic, consumers often find it challenging to use their time effectively to make informed decisions, leading them to make purchases hastily to avoid missing out on discounts. Another example involves some service providers using emotional tactics, such as displaying sad images when users attempt to cancel a subscription. This emotional manipulation makes it difficult for users to unsubscribe or compels them to continue using the service. Additionally, in certain cases, service providers may analyze user data to identify vulnerabilities, such as a user's affinity for animals, children, or the environment. This information is then used to tailor the users’ approach and influence their decisions.
Dark patterns are deemed unethical and illegal in many jurisdictions because they exploit human psychology to influence decisions against individuals' free will and act against their best interests. Furthermore, dark patterns can lead to the loss of customers for businesses in the long term due to their aggressive, misleading, and abusive nature, creating an unfavorable customer experience.
On the consumer side, in response to growing concerns over dark patterns, various legislations and regulations have been put in place to ensure fair commercial practices and prevent manipulation of consumers against their free will. The Digital Services Act (“DSA”), the Unfair Commercial Practices Directive (“UCPD”), and data protection regulations in the European Union are essential legislations that specify rules and principles for data processing and marketing tactics. UCPD prohibits unfair commercial practices affecting consumers' economic interests before, during, and after the conclusion of a contract, including dark patterns. Additionally, data protection legislations such as the General Data Protection Regulation and its directives regulate the processing of personal data and the obtaining of consent for cookies or marketing communications. On the other hand, the DSA prohibits misleading and deceptive methods, including, but not limited to, dark patterns, that may have consequences on consumers by urging users or influencing their free will.
In Turkey, unfair commercial practices are comprehensively regulated by the Turkish Consumer Protection Act with no. 6502 and the Regulation on Commercial Advertising and Unfair Commercial Practices ("Regulation"). On February 1, 2023, the Regulation was amended in a way that specifies and provides examples for misleading activities and unfair practices that may affect consumers. Notably, the Regulation now explicitly prohibits dark patterns, which are defined as 'methods that adversely affect the consumers’ will to make a decision or choice by means of tools such as guiding interface designs, options, or expressions regarding a good or service on the internet, or that aim to cause changes in favor of the seller or provider in the decision the consumers would make under normal conditions'.
Additionally, on August 10, 2023, the Turkish Ministry of Trade issued an announcement stating that the Turkish Advertisement Board ("Board") had conducted an investigation for websites using practices such as offering pre-selected options to consumers and making other options difficult in order to steer consumers towards certain preferences; and as a result, imposed sanctions on the relevant companies.
According to the decision of the Board Meeting with No. 336 dated August 08, 2023, the dark patterns practices that were subject to sanctions include the following:
A firm selling tickets for sports games and events was found to have significantly inflated prices and even sold tickets for non-existent events. The website also displayed notifications indicating that many consumers/users were trying to purchase tickets during the purchasing phase. The Board concluded that these practices adversely affect the consumers' decision-making process by utilizing tools such as guiding interface designs, options, or expressions related to a good or service on the internet. Such practices aim to induce changes in favor of the seller or provider, contrary to what consumers would decide under normal conditions.
A television broadcaster was discovered to default-select an option offering a 43% discount on annual subscription fees without customers’ consent. The Board decided that this practice leads to forcing consumers to become a party to a contract to which they would not be a party under normal circumstances and to subscribe to the platform for a long term.
A computer software company advertised an updated version of its services. However, it was observed that, the 'keep this version' button was placed in an inconspicuous outer corner of the screen, making it visually small and hard to notice. The Board was decided that this situation caused consumers to be forced to become a party to a contract to which they would not be a party under normal circumstances and to update the operating system by making it difficult for consumers to continue using the existing one.
In today's digital age, dark patterns have become a significant concern, which spurred national and international authorities to implement protective measures. Initiatives such as the DSA are just one example of the numerous laws and regulations aimed at maintaining ethical and transparent practices. Turkey, too, is actively advancing such mechanisms, as evidenced by the decisions of the Board. In this regard, in the near future, it is possible to see increase in the number of investigations and sanctions imposed by the Board, due to dark patterns.
Authors: Hatice Ekici Tağa, Sümeyye Uçar, Bensu Özdemir, Göksu Tuğrul