Hidden Traps in Subscription Agreements: Dark Patterns

The Advertisement Board (“Board”) closely monitored dark patterns on online user interfaces that facilitate consumers to enter into subscription agreements, and which might deceive, coerce, manipulate consumers into making choices that may not be in their best interests. Dark patterns are broadly considered deceptive commercial practices under the Commercial Advertising and Unfair Commercial Practices Regulation which defines “The use of guiding interface designs, options, or expressions in an online environment that negatively affect consumers' decision-making or choice-making will be considered methods aimed at altering their decisions in favour of the seller or provider, rather than the normal choice they would make.” as an example of unfair commercial practice.

The Board evaluated that commercial practices, such as pre-selecting subscription packages and highlighting the accept option over the rejection option in updated subscription agreements and the interface designs that make it harder for consumers to complete their purchase without upgrading their preferred subscription plan, are dark patterns.

• The Board examined the website of a financial services company offering monthly and annual subscription packages, where the "annual subscription" option was pre-selected and the more expensive "pro" option was highlighted in blue with a "most preferred" label in green and capital letters. After reviewing the documents provided by the company, the Board concluded that the "most preferred" label was accurate, since "pro" was indeed the most preferred option, but was of the opinion that the pre-selection of the "annual subscription" box and the blue highlighting of the "pro" option was misleading and influenced consumer choices, as it significantly attempted to impact on their economic behaviour or led them to engage in a transaction they would not have preferred under normal circumstances. Ultimately, the Board decided that such practice constitutes unfair commercial practice and issued a cease order.
• The Board, in another review regarding the pre-selection of a subscription plan, stated that no subscription plan should be pre-selected for consumers, regardless of whether it is deemed beneficial or not, so they can make decisions based solely on their own will without any external (but perhaps deceptive) influence, and imposed a cease order. Regarding the “most popular” label next to the pre-selected package, the Board emphasised that consumers should clearly be informed about what this meant by this label, and the label could be presented to consumers only if substantiated with data such as statistics related to purchase, click, or add-to-cart variables.
• The Board reviewed the commercial practices of a streaming company, where the monthly subscription package was pre-selected, and entering payment details was mandatory to access the 7-day free trial. The Board concluded that pre-selecting options for consumers and forcing them to enter bank card information to access the free trial negatively influenced their decision-making, leading them to engage in a transaction they would not normally have entered, causing consumer harm, and violating fair competition principles.
• The Board examined the commercial practices of an online video-sharing and social media platform where one subscription plan was pre-selected, and the "1-month free trial" option was presented in a manner that made it harder for consumers to opt out because the "X", reject icon was placed separately in the top-right corner for consumers who do not want to take this offer, which made it harder for users to avoid the offer. The Board concluded that the pre-selection steered the choices of consumers and the practice of not presenting the two options equally made it more difficult for average consumer to opt out and ruled that the practice examined constituted dark pattern.

As demonstrated in these decisions, the Board has taken a strict stance on the conditions under which subscription agreements could be presented to online consumers. Adopting a consumer-protective approach, the Board has classified subscription interfaces that are pre-selected as dark commercial designs, even when the outcome may ultimately benefit the consumer. In terms of protecting consumers' freedom of choice and decision-making, preventing dark patterns is crucial. However, the approach adopted by the Board may lead to the interpretation that "every pre-selected presentation constitutes a dark commercial design”. In fact, according to the fundamental principles of Turkish consumer law and the Board's decisions, "dark pattern" is defined as a user interface design intentionally created to mislead or direct consumers to actions they would not normally take. The danger of these designs lies in the risks they pose in negatively influencing consumers. In this regard, a distinction based on concrete data and evidence should be made between manipulative and misleading practices for consumers and the fair commercial practices such as “pre-selections” which is widely used both in Türkiye and worldwide. From this perspective, the Board's conclusion that “pre-selection is a direct and sole ground for illegality” may conflict with the principles of legal certainty and predictability.