PENALTY IMPOSED BY THE PRESIDENT OF THE POLISH OFFICE OF COMPETITION AND CONSUMER PROTECTION FOR USING DARK PATTERNS
Publication date: January 11, 2024
The President of the Polish Office of Competition and Consumer Protection announced the imposition of a fine of over PLN 1.5 million on one of international companies operating in Poland. The company allegedly used the so-called dark patterns, or more precisely, automatically added products to customers’ baskets in online shopping.
Dark Patterns – what are they?
Dark Patterns, called design patterns, are intended to confuse the average user into making the most favorable decision for a specific platform or application. They constitute unethical means manipulating users of digital services, and their use may violate the provisions of the GDPR, the Act on Competition and Consumer Protection, or the Act on Digital Services coming into force on February 17, 2024, which directly prohibits the use of these patterns through online platforms. However, before this Act comes into force, currently misleading patterns may be contrary to the principle of fair and transparent processing (Article 5(1)(a) of the GDPR) and, in accordance with the Office of Competition and Consumer Protection, may be considered unfair competition practices.
As a result, national authorities responsible for personal data protection and consumer protection are increasingly showing interest in this problem and imposing appropriate financial penalties.
Types of Dark Patterns
Dark Patterns can take many forms, including:
- Manipulating the consumer’s decision;
- being bombarded with content, making it difficult to make a decision;
- differentiating the visibility of individual information and links, e.g. by changing the color or font size;
- automatic extension of subscription without the user’s consent or knowledge;
- default checkbox selection;
- automatic adding of products to the cart;
- Omitting important information on the online platform;
- distracting users with other irrelevant information and links;
- hiding information about the possibility of unsubscribing;
- not providing information about shipping costs.
Use of dark patterns by the infringing company in Poland
The automatic addition of products to the cart in online shopping used by the Swedish company operating in Polish market in its online store attracted the attention of the Polish Office of Competition and Consumer Protection. As indicated by the Office of Competition and Consumer Protection, promotional products were added to people’s carts shopping in the online store without prior express consent. These included: umbrellas or cups. The result of these actions was that the online shop’s customers often purchased unwanted products that they might have missed in a full shopping cart.
Position of the Polish Office of Competition and Consumer Protection
After conducting proceedings regarding practices violating the collective interests of consumers, the President of the Office of Competition and Consumer Protection, pursuant to Art. 27 section 1 and section 2 in connection with Art. 24 section 1 and section 2 point 3 of the Act on the Competition and Consumer Protection, recognized the use of dark patterns by the infringing shop on the platform of its online store as a practice violating the collective interests of consumers. According to the Office of Competition and Consumer Protection, adding a product to a promotional basket should depend solely on the will and decision of the consumer. Therefore, the shop’s use of automatic addition of products to the basket, guided by the belief that the consumer can remove the unwanted product himself, resulted in many cases in the return and the need to spend time and bear the costs of sending the parcel.
Consequences of violating the collective interests of consumers
As a result of the President of the Office of Competition and Consumer Protection finding that the infringing shop was using practices violating the collective interests of consumers, the regulatory body decided, pursuant to Art. 26 section 2 in connection with Art. 27 section 4 of the Act on the Competition and Consumer Protection to impose a measure to remove the ongoing effects of violating the collective interests of consumers in the form of a refund by the online store of a specific sum to all consumers who, after purchasing goods in the online store in the period from January 4, 2022 to December 27, 2022, received unsolicited items in their orders and decided not to return them. Moreover, it was decided that the store shall, within 30 days from the decision becoming final, inform the customers referred to above via e-mail and SMS about the violation of consumers’ collective interests, about the refund amount they are entitled to, its form, the method of obtaining it and the date of its implementation.
Moreover, the online store was obliged, as a means of removing the ongoing effects of violating the collective interests of consumers, to publish, at its own expense, on its website and social media, messages (with the content indicated by the President of the Office of Competition and Consumer Protection in the decision) within a specified date and for a specified period of time. These messages are primarily intended to inform about the violation of the collective interests of consumers by the infringing company, contain an appropriate reference to the decision of the President of the Office of Competition and Consumer Protection and contain information on the possibility of refunding costs for unordered purchases as well as the conditions for granting them.
Ultimately, the President of the Office of Competition and Consumer Protection decided to impose an obligation on the infringing company pursuant to Art. 106 section 1 point 4 of the Act on Competition and Consumer Protection, to pay a fine in the amount of PLN 1,578,061.00 for violating the prohibition of using practices violating collective consumer interests through unfair market practices or acts of unfair competition. Moreover, the infringing company, pursuant to Art. 77 section 1 and art. 80 of the Act on the Office of Competition and Consumer Protection and Art. 263 § 1 and art. 264 § 1 of the Act of June 14, 1960 Code of Administrative Procedure was ordered to pay the costs of the proceedings.
