Sky’s online streaming service NOW TV has been reprimanded by the Advertising Standards Agency (ASA) for using the ominous-sounding ‘dark pattern’ marketing tactic.
The advertisement on NOW TV's website in question detailed some subjectively convoluted subscription options:
- The membership selection page featured the sub-heading ‘ENTERTAINMENT MEMBERSHIP’ and a clickable button labelled ‘Choose your membership’
- Customers were then offered ‘6 Month Saver’ and ‘Fully Flexible’ memberships
- The ‘6 Month Saver’ included a 1-month free trial of ‘Boost’, auto-renewing at £6 per month unless cancelled.
- The ‘Fully Flexible’ option offered a 7-day free trial of ‘Cinema’ and ‘Boost’, with auto-renewal at £9.99 for Cinema and £6 for Boost, unless cancelled
Although Sky contended that the ad was clear and provided adequate information on its subscriptions, the ASA disagreed.
In its ruling, the regulator said: “Text was placed away from the references to the free trials and below the button to proceed in the consumer journey (meaning) consumers were more likely to overlook the significant conditions of the trials.”
One could diplomatically say that Sky simply failed to present clear messaging to consumers; frustrating yes, but certainly not criminal.
Others contend that such practices hide a darker, more cynical motive.
Dark Patterns/Dark Nudges
Dark nudges and dark patterns refer to techniques used to influence consumers towards making decisions that benefit the business but are against the consumer's interests.
These can include tactics like one-click purchases or pre-selected options for subscription services.
Examples include drip pricing (where additional costs are revealed only at later stages of a transaction), false scarcity claims (highlighting that only a few items remain) and misleading default choices (pre-selecting options that the user may not want).
According to the Competition and Markets Authority (CMA), some dark patterns, like drip pricing and forced outcomes (such as adding items to a cart without consent), are particularly harmful because they erode trust and can cause consumers to overspend or choose inferior products.
One of the more egregious types of dark patterns, and one that strikes a resemblance to NOW TV’s banned advertisement, comes in the form of subscription traps.
Subscription traps are classified as a deceptive practice where businesses make it easy for consumers to sign up for a subscription service but difficult to cancel it, often leading to unintended or continued payments.
Subscription traps often include auto-renewal clauses, where the service continues without clear reminders or notifications to the consumer about ongoing charges.
Almost every digital consumer will have experienced this- you look at your monthly bank statement only to see a debit to your account from an online streaming website or perhaps a food-delivery service that you swear you have cancelled.
Sludge
This is where sludge comes in, which refers to the deliberate addition of unnecessary friction to cancelling a subscription or obtaining a refund.
Perhaps you clicked unsubscribe, then clicked yes when asked if you are sure you want to unsubscribe, then refused a further discounted offer, but then failed to confirm your subscription cancellation at the very last hurdle.
Once again, you see a monthly charge for a VPN service that you didn’t want on your monthly bank statement.
Sludge can also make beneficial actions harder for consumers, such as burying important information in complex legal jargon or requiring many steps to complete a transaction.
Cost to the customer
A 2022 discussion paper from the CMA went to great lengths highlighting the potential for financial harm arising from irresponsible 'online choice architecture' (OCA).
“OCA can distort consumer behaviour, and cause them to buy more than they want, at higher prices and after searching less,” said the CMA.
A 2017 study by the European Consumer Centre in Sweden found that around 3.5 million consumers in six European countries over a three-year period accepted an offer that led to a subscription trap (European Consumer Centre Sweden, 2017).
A 2016 survey conducted by Citizens Advice in the UK showed that around 17 million consumers signed up for a subscription service using continuous payment mechanisms, but two million consumers had their requests to cancel eventually declined.
A 2019 research piece published by Mathur et al identified dark patterns on more than 11% of 11,000 popular shopping websites.
While this body of research proves that dark patterns are a threat to consumer confidence, it is still unknown what the actual financial costs to the consumer are on an annual basis.
To help tackle the issue, law firm Dentons suggested that the recently introduced Digital Markets, Competition and Consumers Act could be used to combat dark patterns, but today’s ruling against NOW TV proves that the issue remains an ongoing one for now.