Chapter 6. Dark patterns as infringements of EU consumer law

6.1. Introduction

As Chapter 4 notes, socio-technical issues rarely, if ever, arise in a legal vacuum. In Chapter 5 we saw that the Unfair Commercial Practices Directive (UCPD) and the Consumer Rights Directive (CRD) set out to safeguard some of the dimensions of consumer decisions that dark patterns seek to undermine – our freedom to choose and to do so in an informed matter, albeit with a focus on the informational (rather than behavioural) dimension of decision-making, and in a relatively technologically neutral manner.

This chapter puts these instruments to the test by applying them to dark patterns. My focus here are the Shopping dark patterns Mathur et al. found in their measurement of dark pattern prevalence on e-commerce websites.1 To recap, Shopping dark patterns are dark patterns that may influence users’ purchasing decisions, such as whether and on what terms to buy products, i.e. goods and services (subscriptions). The aim of my analysis in this respect is not to provide a comprehensive legal categorisation of all dark patterns in all digital environments – of which there is an extensive and growing list, as we saw in Chapter 3 – nor is it to exhaustively analyse all types of dark patterns that may be found on e-commerce websites. I rather seek to illustrate, based on these examples, both the potential and the challenges attached to using the current legal framework to address the proliferation of dark patterns. To support my analysis, I rely on a variety of sources: European case law and national enforcement decisions and cases; preparatory texts, guidelines and studies conducted or commissioned by relevant public bodies (e.g. consumer authorities and organisations); and consumer law scholarship. Ultimately, however, I am interested in finding out whether we can derive useful guidance on user interface design from the current protective provisions at EU level: both the UCPD and the CRD (insofar as its provisions on distance contracts are concerned) are maximum harmonisation instruments, which means that we may want some clarity in this respect across the EU.

As we saw in Chapter 5,2 the UCPD takes a cradle-to-grave approach, in that it governs B2C commercial practices that may affect consumers’ economic decisions with regard to a product from the advertising stage onwards, and deals with any and all of the consequences of a contract, should one be formed. A ‘product’ within the meaning of the Directive is any good or service.3 The CRD applies to distance B2C sales and services contracts. Shopping dark patterns may influence consumers’ decisions as to whether to enter – and, if so, on what terms – into sales/services (subscription) contracts, and whether to stay in them. Both of these instruments are therefore applicable to the practices I discuss in this chapter.

Each of the practices within my purview will be analysed from the perspective of the UCPD and, where relevant, the CRD; as we saw in Chapter 5, while the UCPD and CRD overlap in terms of information remedies, the UCPD is concerned with consumer protection beyond transparency: it also regulates the use of aggressive commercial practices and of practices that may breach the standard of professional diligence. The analysis is conducted from the perspective of the average consumer, as Mathur et al. investigated dark patterns that address consumers generally (rather than specific consumers or categories thereof). To recap, the average consumer of the UCPD is, according to Recital 18, ‘reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors’. In other words, the average consumer is generally expected to engage with all the information they are provided with and to make a rational decision based on it,4 to have some understanding of the purpose and effects of commercial practices5 and to display some robustness in the face of commercial pressure.6 Recital 18 also specifies that the average consumer test is not a statistical test, which means that national authorities ought to exercise their own judgement when they assess the expected reaction of an average consumer to a commercial practice. This makes the test a normative one – the average consumer is defined in aspirational, rather than realistic terms.7 Sibony and Mocanu aptly summarise the essence of the average consumer benchmark as ‘an abstract sketch of a super-shopper, and there is no room for empirical evidence about how real consumers behave’.8

The chapter proceeds as follows. Section 6.2 deals with the legal treatment of Urgency dark patterns, i.e. practices that impose a deadline on a sale, which rely on the scarcity bias – the tendency to place a higher value on scarce things.9 Section 6.3 is dedicated to Scarcity dark patterns, which leverage the scarcity bias as well, but do so by signalling the limited availability of a product.10 In section 6.4 I discuss Social Proof practices, which exploit the tendency to value things more because others attribute value to them (bandwagon effect) by providing information about other users’ activity or experience with a product or trader.11 Section 6.5 is about Sneaking dark patterns, which may manipulate information flow or choice presentation to steer users towards choices that benefit a trader’s bottom line.12 In section 6.6, I analyse Hard to Cancel, the only dark pattern of the Obstruction variety identified by Mathur et al., which entails making it harder for users to cancel subscriptions than to sign up for them.13 Section 6.7 is on Misdirection dark patterns, which use visual elements, language and emotion to steer user choices.

As many of the dark patterns found in the Mathur et al. study rely on cognitive biases or seek to capitalise on consumers’ emotions, in section 6.8 I devote some space to the overarching question of whether the behavioural exploitation of consumers may amount to an infringement of the UCPD.

Section 6.9 provides a summary of my legal conclusions, and reflects on the effectiveness of the current legal framework in light of the theoretical framework developed in Chapter 4. Central to the analysis in this regard is Brownsword’s concept of regulatory disconnection.14 As discussed in section 4.3, regulatory disconnection may present as a normative disconnection, which points to changes in the socio-technical landscape that may make us want to rethink the goals and values underlying regulatory frameworks, and/or as a descriptive disconnection, which refers to a lack of correspondence or fit between regulation and technology or the way it is developed. Both types of disconnection are bad news for the effectiveness of socio-technical regulation. Both types of disconnection are also likely to occur repeatedly, which is why Bennett Moses stresses that rather than striving to get the regulatory framework right once and for all, we may want to provide some mechanisms for adaptability by modifying the regulatory environment.15 Before we get there, let us first look at what sort of legal conclusions we may derive from the interaction of the current legal framework and dark patterns.

6.2. Urgency

6.2.1. Countdown Timers

Countdown Timers are dynamic indicators of an offer deadline, which count down the time remaining until the offer expires. According to the Mathur et al. typology, Countdown Timers may be deceptive when they reset upon refreshing the page or after time-out, or if the offer remains valid after the expiration of the timer.16 Fig. 1 shows an example of a deceptive Countdown Timer.

Fig. 1. Deceptive Countdown Timer on justfab.com. The offer is still available after the timer expires17

The legal treatment of deceptive Countdown Timers under the UCPD is quite straightforward. Deceptive Countdown Timers are caught by point 7 of the Annex I list, which proscribes traders from ‘[f]alsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice’. On a full reading of point 7 it may seem, however, that the last part of the sentence requires that the commercial practice be deployed specifically for the purpose of eliciting an immediate decision from the consumer, which is suggestive of some element of fault on the trader’s part. In my opinion it is highly unlikely that this is an additional legal requirement for the practice to be caught by the prohibition.18 As we saw in the previous chapter,19 the general clauses of the UCPD do not require a subjective assessment of the behaviour of the trader. Further, reading a requirement to establish the purpose of the commercial practice into paragraph 7 would also lead to insurmountable argumentative hurdles that would render the prohibition ineffective and would not align well with the Directive’s stated aim of ensuring a high level of consumer protection. It is therefore more plausible that the second part of this sentence is to be read as a clarification of the effect that a practice like this may have on a consumer's decision. Deceptive Countdown Timers are thus likely to be considered an unlawful dark pattern in my opinion. This position is supported by the commitments obtained by the Consumer Protection Cooperation (CPC) network from Booking.com. The online accommodation booking platform committed to only using time-limited offers that really expire after the indicated end time.20 Similarly, in its ‘Principles for Businesses Offering Online Accommodation Booking Services’ the UK Competition and Markets Authority (CMA) advises traders not to present offers as being time limited in circumstances where they will continue to be available beyond the stated period.21 In the Netherlands, the Autoriteit Consument & Markt’s (ACM) 2023 ‘Guidelines on the Protection of the Online Consumer’ state that it is not permitted to use a Countdown Timer where the special offer does not end after the timer stops.22 The ACM also developed a tool for the detection of deceptive Countdown Timers.23 Using this tool, the ACM conducted an automated screening of thousands of online stores in 2023, and confronted 41 traders that were using deceptive timers.24

As Helleringer and Sibony point out, the prohibition covered in paragraph 7 only covers instances where the impression of limited time availability is falsely created.25 While Countdown Timers that are not deceptive may still influence the economic behaviour of consumers in some contexts, as we saw in Chapter 3,26 the national practice discussed in this section suggests that the authorities do not see their use as problematic from the perspective of the UCPD. The ACM explicitly states in this respect that a business is permitted to show how long the special offer will last via, for example, ‘a countdown timer counting down until the end of the offer’ (as long as the remaining time shown is true).27 In other words, the fact that Countdown Timers could facilitate informed consumer decision-making cannot be entirely discounted (pun intended).

The Court’s decision in GB-INNO-BM,28 a free movement of goods case pre-dating the UCPD, could indicate that the Court also deems it beneficial for consumers to know how long an offer will be available for. In this case, Luxembourg’s prohibition on stating the duration of an offer was found to be incompatible with Arts. 34 and 36 TFEU. Indeed, it is possible to argue that a Countdown Timer is a more prominent – and therefore possibly even a more effective – way of communicating the time when an offer will expire to an (average) consumer than, say, plain text. At the same time, even informative Countdown Timers may still induce a feeling of scarcity through blinking visual elements, for example.29 Whether that influence is unacceptable needs to be established by reference to the general clauses of the Directive – Arts. 8–9 and 5. How the relevant provisions apply to practices that exploit cognitive biases is discussed in section 6.8.

6.2.2. Limited-time Messages

Limited-time Messages (Fig. 2) state that an offer will end soon or is only available for a limited time, but do not specify an end date, which is also not provided in the fine print or terms-of-sale pages.30

Fig. 2: Limited-time Message on chicwish.com31

As opposed to Countdown Timers, Limited-time Messages are not deceptive, but merely withhold information about how long the offer will last, and cannot therefore be caught by the prohibition in point 7 of Annex I UCPD.

A case can be made for considering the offer duration as a material point of information for the purposes of Art. 7(1) UCPD, which, in prohibiting misleading omissions, imposes a general duty of disclosure on traders. Offer duration is an element of price information. The Court views price information as central to informed consumer decisions: in Canal Digital Danmark, a case concerning a Danish subscription television provider’s price advertising campaign, the Court held that ‘the price is, in principle, a determining factor in the mind of a consumer when he has to take a transactional decision’.32 Further, as discussed in the previous sub-section, the Court’s decision in GB-INNO-BM,33 which took issue with a Luxembourgish law that prohibited stating the duration of an offer in promotional materials, suggests that the Court may find it beneficial for consumers to know how long an offer will be available for.

Art. 7(1) does not prohibit all omissions, however, but rather those that could influence a consumer’s transactional decision. Uncertainty about offer duration might lead an average consumer to wrongly believe that the offer will be available for a shorter time than is the case, and cause them to accept it without shopping around for other, possibly better options. It is thus relatively easy to envisage Limited-time Messages as constituting misleading omissions. What is not clear is how and where information about offer duration ought to be disclosed. Recall from the previous chapter that, by virtue of its second paragraph, Art. 7 UCPD also considers misleading presentation of information a misleading omission. This entails clear stakes for traders, but less clear expectations, and could invite both unintentional breaches and attempts to find ways to obscure the required information via user interface design. I return to this in 6.9.

6.3. Scarcity

6.3.1. Low-stock Messages

Low-stock Messages signal the low availability of a product to users (Fig. 3). Mathur et al. established that Low-stock Messages can be deceptive – the product values can be regularly automatically decremented by some value or randomly generated on page load (sub-section A).34 They also note that Low-stock Messages can be particularly problematic in other ways: by not displaying the stock quantity and being shown for nearly all products (sub-section B).35

Fig. 3: Low-stock Message on orthofeet.com36

A. Deceptive Low-stock Messages

The authors of the Commission’s behavioural study on dark patterns suggest that deceptive Low-stock Messages could be caught by point 7 of Annex I UCPD,37 which, as explained in 6.2.1, prohibits false statements to the effect that a product is only available for a very limited time. While false statements about low availability imply that time is of the essence in purchasing a product, they do not contain an explicit reference to a measure of time. As the practices listed in Annex I are prohibited in all circumstances, it is possible that the Court would give a concept like ‘limited time’ a narrow interpretation in the interests of legal certainty.

Product availability is, however, one of the items of information listed in Art. 6(1)(b) UCPD, which deals with misleading actions and prohibits traders from making false statements insofar as they may influence consumers’ transactional decisions. As they could lead a consumer to purchase a product based on the falsely created belief that it may be out of stock soon, the use of deceptive Low-stock Messages is very likely to constitute a misleading action.

B. Truthful Low-stock Messages

Even when they are not deceptive, Low-stock Messages may still be misleading within the meaning of Art. 6(1)(b) UCPD. This provision prohibits factually incorrect as well as accurate information that may otherwise deceive the consumer.38

Several decisions by consumer protection authorities and self-regulatory bodies taken against online accommodation booking platforms illustrate how Low-stock Messages may still be at odds with the UCPD when they are not false. In 2011, the Commercial Court of Paris found the display of the message ‘there is no room available during the selected period’ on expedia.fr, hotels.com and tripadvisor.fr misleading, as some hotels that had been listed as sold out had available rooms beyond the platform offering.39 In 2014, the Dutch Advertising Code Committee found Booking.com’s claims ‘We have only 1 room left!’ and ‘Only 1 room left at [x] price’ misleading for the same reason; this decision was upheld by the Appeals Board later that year.40 The practices of online accommodation booking companies have also come within the purview of the UK CMA, which launched a sector-wide investigation in 2017 and obtained commitments in early 2019 from several operators to change their practices regarding, amongst other examples, scarcity messages.41 Later that year, the CMA published a set of principles reflecting its view on how such companies can comply with consumer law. These guidelines require that statements about availability must be clear, ‘disclose the assumptions, limitations and qualifications that are relevant to the statement’ and ‘be substantiated by the hotel booking website’s data’.42 In 2019, the CPC Network launched a coordinated action led by the Dutch ACM and the Hungarian Competition Authority – Gazdasági Versenyhivatal (GVH) – against Booking.com and the Expedia Group. The CPC Network took issue, amongst others, with the way the hotel booking platforms presented statements about the availability of accommodation for a destination and the number of rooms available in an accommodation. The platforms committed to including relevant qualifications (e.g. ‘limited rooms on this website’, ‘for the same stay days’) in such statements, and to backing up the statements using platform data.43

This body of national and supranational enforcement actions shows that the authorities concerned recognise that Low-stock Messages may be informative as to the availability of an offer if they are factually true and complete.44 Vague Low-stock Messages can, however, lead to a misrepresentation of the actual availability, which, in turn, might cause a consumer to purchase a product. For the online accommodation booking sector, there is some clarity as to what completeness means. Some additional clarity may be called for in relation to other sectors, however. Accommodation in a particular location for a particular time period is a product that is in limited supply; what would need to be disclosed for other products, however? Is precise stock data necessary for every product variation? Does the consumer also need to know about planned inventory replenishment, as Moser et al. suggest?45 What if there are delays in terms of inventory replenishment; do these need to be disclosed as well?

Turning to the practice of showing Low-stock Messages for all products, this makes sense in conditions of limited supply (as is the case with hotel accommodation in a specific location for certain dates, and, in an online shopping context, on bargain websites). In such circumstances, it may make sense for a consumer to know about the availability of other products, and this seems to be the position of the national authorities whose practice we surveyed above – both Booking.com and Expedia make extensive use of Low-stock Messages.

In other instances, it would be hard to argue that the transactional decision of an average consumer with regard to a particular product might be influenced by Scarcity claims that concern other products. That is also likely to be the conclusion with regard to the visual presentation of Low-stock Messages. As Fig. 3 shows, these may be presented in red. In some purchasing settings, the use of this colour has been found to increase a willingness to pay based on colour-induced aggression.46 While a not-so-average consumer may experience a feeling of urgency, if we take it as a given that Low-stock Messages are informative their prominent presentation may also be deemed informative. I return to this in 6.8.

6.3.2. High-demand Messages

High-demand Messages (Fig. 4) signal to users that a product is in high demand, thereby implying that it is likely to sell out soon.47 The majority of the websites using High-demand Messages in Mathur et al.’s dataset showed them for all products.48

Fig. 4: High-demand Message on pacificcoast.com49

While High-demand Messages have not been addressed in prior enforcement actions or guidelines issued by consumer protection authorities, as they also concern information about product availability (Art. 6(1)(b) UCPD), it is very likely that compliance with the UCPD merely requires traders to define what ‘high demand’ entails to enable a consumer to make a judgement as to how likely it is that a product will sell out soon. Some guidance on how this could be achieved seems necessary, however. As to the practice of displaying these messages for all products, as I explained in the previous sub-section, this practice may be informative in some settings where there is indeed limited supply. In other settings, it will be hard to argue that the mind of the average consumer may be swayed to make a transactional decision in relation to a product of interest based on the apparent scarcity of other products.

6.4. Social proof

6.4.1. Testimonials of Uncertain Origin

Testimonials are a form of electronic word of mouth50 consisting of written statements about (satisfied) customers’ experiences with a product or a trader.51 Testimonials are a form of online reviews in that they detail a customer’s evaluation of a product or shopping experience. However, what sets testimonials apart is that they are favourable reviews that the trader chooses to highlight from amongst the reviews on third-party review platforms or those sourced from prior customers via e-mail,52 including those gathered through the use of incentives like discounts or prize draws,53 as it is well known that most consumers do not write reviews.54 The Testimonials of Uncertain Origin dark pattern (Fig. 5) entails the publication of customer testimonials without specifying how these were sourced.55

Fig. 5: Testimonials of Uncertain Origin on coolhockey.com56

In their study, Mathur et al. established that the customer testimonials on at least one website could also be found on a different website with different customer names attached to them,57 which might indicate that these are fake.58 Another website used testimonials that were sourced from Instagram influencers.59

Two characteristics of Testimonials are relevant in terms of the law: their authenticity, which is questionable both when testimonials may be fake and when traders use incentives to obtain testimonials (sub-section A), and the (non-)disclosure of their origin (sub-section B).

As discussed in Chapter 5,60 with the adoption of the Omnibus Directive, EU consumer law now directly regulates the reliability of consumer reviews. Before proceeding with the analysis of concrete legal provisions, it is necessary to establish what counts as a consumer review for the purposes of the new UCPD provisions (points 23b-c of Annex I and Art. 7(6)). Point 23b uses the term ‘reviews of a product’; point 23c refers to consumer reviews submitted ‘in order to promote products’; and Art. 7(6) requires information as to the sourcing of ‘consumer reviews of products’. By including a reference to ‘products’ in these provisions, the legislator seems to have attempted to circumscribe the scope of online reviews that are covered by the Directive. This was most likely a clumsy attempt to distinguish between reviews and brand advertising, the latter of which is considered a legitimate practice under the UCPD.61 Online reviews may, however, concern both the consumer’s experience using a product and their experience dealing with the trader, and both accounts may influence a consumer’s decision to purchase a product. In this regard, the Commission states in its 2021 UCPD Guidance that these provisions also apply to reviews that have as their main object the qualities and performance of traders when offering or selling those products.62 If that is indeed the envisaged scope of the new provisions, the language choice is rather unfortunate. A narrow interpretation of the new provisions would lower the level of protection afforded to consumers. Seller evaluation is particularly salient information when dealing with a new market entrant, and newcomers are more likely to engage in review manipulation.63 Some of these newcomers will inevitably be fraudulent: according to Statistics Netherlands, 6.9% of the Dutch population aged 15 and older have fallen victim to web-shop fraud in 2021 alone; this number has more than doubled since 2012.64 In light of the UCPD’s aim of ensuring a high level of consumer protection, it is possible that the Court would give the legislator the benefit of the doubt. Should that not be the case, the less specific provisions of the UCPD, which were applied to online reviews pre-Omnibus, could still fill the potential gap, as we will explore in this section.

A. Testimonial authenticity

Point 23c of Annex I UCPD prohibits (i) submitting or commissioning other persons to submit false reviews, and (ii) misrepresenting consumer reviews or social endorsements.

While the Directive does not define false reviews, the overall concern of the Omnibus provisions on online reviews with consumers having actually used or purchased a product previously65 suggests that reviews that are not linked to an actual consumer experience constitute false reviews. The outright fabrication of Testimonials is thus a practice prohibited in all circumstances by virtue of the first element of the point 23c prohibition. Pre-Omnibus, the publication of fake reviews could have been addressed via point 22 of Annex I, which prohibits falsely representing oneself as a consumer.66

What is less clear, however, is whether incentivised Testimonials, i.e. those written by consumers that were paid by the trader or Testimonials written by influencers, are false reviews. While these are based on an actual experience, the use of a financial incentive in both cases poses a risk that the portrayal of that experience will be (more) favourable.67 If a trader actively pursues or encourages the submission of a positive review, this could, prima facie, be caught by the second element of the point 23c prohibition. Recital 49 of the Omnibus Directive states that ‘traders should also be prohibited from submitting fake consumer reviews and endorsements [...] as well as from manipulating consumer reviews and endorsements, such as publishing only positive reviews and deleting the negative ones’. The 2021 UCPD Guidance reaffirms that the second element of the point 23c prohibition refers to review manipulation as defined in Recital 49, and adds that, inter alia, providing consumers with pre-filled positive review templates and trying to convince consumers to reconsider or withdraw their reviews also constitute manipulative practices.68 From the perspective of the Commission, review misrepresentation is not just concerned with how reviews are published, but also with how these are collected. This is a broader scope than that delineated by Recital 49, and will require affirmation from the Court. As Durovic and Kniepkamp point out, the prohibition of review misrepresentation ‘leaves more questions open than it answers’.69

Pre-Omnibus, publishing biased reviews could have constituted misleading actions (Art. 6) or omissions (Art. 7) on the characteristics of the trader or products.70 A host of national practice reflects this. The ACM in the Netherlands71 and the UK CMA72 have both published guidelines advising traders not to set the tone of incentivised reviews. The Forbrukertilsynet (Norwegian Consumer Authority) similarly warned traders that this practice could constitute a misleading action in relation to the main characteristics of the product or the trader’s attributes.73 As Narciso argues, ‘[t]his deception could cause the average consumer to select this trader over another one’.74 At the same time, neither authority seems to be of the opinion that the use of incentives per se is prohibited; the national practice takes issue with the encouragement of positive reviews.75 There may, however, be disclosure obligations applicable. These are discussed in the following section.

B. (Non-)disclosure of testimonial origin

The newly introduced Art. 7(6) UCPD states that whenever traders provide access to consumer reviews of products, information about whether and how they ensure that the reviews originate from actual consumers now constitutes material information for the purposes of Art. 7 UCPD.76 By virtue of its wording (‘whether and how’), Art. 7(6) does not require traders to put in place mechanisms to ensure that reviews are authentic; they must simply disclose that no such measures have been taken if that is the case. However, as Duivenvoorde points out, this might incentivise traders to adopt review-checking procedures.77

Recital 47 of the Omnibus Directive casts the scope of this information duty in a broad light: traders should inform consumers not just about the existence of measures to ensure that reviews originate from verified consumers, but also on the processing of reviews. Processing in this context refers to whether all (positive and negative) reviews are published and whether the reviews have been sponsored or influenced by a contractual relationship with a trader, which concerns the way the reviews were collected.78 Thus, Art. 7(6) seems to also mandate the disclosure of the source of the reviews; the Commission, too, takes this view in its 2021 UCPD Guidance.79 The use of Testimonials of Uncertain Origin is therefore very likely to result in a breach of Art. 7 UCPD, as it could lead consumers to believe that the published accounts of past customers’ experience are reliable and to mistakenly rely on them in their purchasing decisions. Prior to the Omnibus provisions becoming applicable, several national authorities had interpreted Arts. 6 and 7 UCPD to require that information about how reviews are collected be disclosed.80 That being said, although the fact that this information needs to be disclosed is relatively clear, how to disclose it is less so. The results of the 2021 CPC Network sweep on online reviews indicate that ‘[o]nly 84 websites make such information [on review collection and processing] accessible to consumers on the review page itself, while the rest mention it in “small print”, for example in their legal terms and conditions’ (T&Cs).81 That the misleadingness of information presentation needs to be assessed on a case-by-case basis, based on how an average consumer would react to it, makes the expectation that it not be disclosed in T&Cs rather unpersuasive; it also does not clarify further where and how the information ought to be presented.

Recital 47 also posits that Art. 7(6) requires traders to disclose whether reviews have been sponsored or influenced by a contractual relationship with the trader. This could entail that the use of incentives in the collection of testimonials has to be disclosed, whether these are directed at prior customers or influencers. One of the findings of the 2021 sweep was that 176 of the 223 websites surveyed ‘do not mention that incentivised reviews (e.g. resulting from a monetary reward) are prohibited by their internal policies or if not how they ensure they are flagged as incentivised’, which lends legitimacy to this interpretation of Art. 7(6) UCPD.82 The ACM in the Netherlands now expects traders to disclose ‘whether any form of compensation was paid for reviews’.83 Pre-Omnibus, this practice could have resulted in a breach of Art. 7(2) UCPD, according to which the non-disclosure of the commercial intent of a practice may lead to a misleading omission; an average consumer may be misled to believe that an opinion is genuine and mistakenly rely on it when deciding what to buy and where from.84 Again, what is trickier to determine is where and how this information ought to be disclosed so as not to result in a misleading omission.

6.4.2. Activity Notifications

Activity Notifications (Fig. 6) are temporary, attention-grabbing and often recurring messages that appear on product pages indicating the activity of other users. The messages can indicate that other users have just bought a product, or how many users have viewed a product or have it in their basket.85

Mathur et al. classify Activity Notifications as deceptive if they are hard-coded or randomly generated (sub-section A).86 Activity Notifications may also be problematic when they do not tell the whole story (sub-section B).

Fig. 6: Activity Notification on tkmaxx.com87

It should be noted that, aside from informing consumers’ on other users’ activity, Activity Notifications also indicate a product’s popularity, therefore signalling its (decreasing) availability. The UK CMA notes in this respect that ‘popularity claims [...] can draw on similar psychological mechanisms to scarcity claims’.88 According to Teuber and Graul, Low-stock Messages and Activity Notifications are supply-based and demand-based cues, respectively; the authors state that this qualification is defensible, as no real-world product is available in unlimited amounts and, where consumers are uncertain as to a product’s abundancy, a popularity cue may lead them to perceive a product as scarce.89

A. Deceptive Activity Notifications

Deceptive Activity Notifications could be caught by point 23c of Annex I UCPD, which prohibits ‘[s]ubmitting [...] false consumer reviews or endorsements [...] in order to promote products’. What is meant by the term ‘endorsements’? Point 23c goes on to also prohibit ‘misrepresenting consumer reviews or social endorsements’. Recital 49 of the Omnibus Directive clarifies that the term ‘endorsements’ includes ‘likes’ on social media. In its 2021 UCPD Guidance document, the Commission takes the view that the notion of ‘endorsements’ should be interpreted broadly, also covering ‘fake followers, reactions and views’.90 Activity Notifications could be said to be endorsements, as they are meant to signal the social value or popularity of a product/retailer, much like social proof indicators on social media platforms.91 At the same time, however, the examples listed in the Omnibus Directive and the Guidance document could indicate that ‘social endorsements’ is to be read as ‘endorsements on social media’.

Should deceptive Activity Notifications not be caught by the point 23c prohibition, it is possible to turn to the wider prohibition of ‘falsely representing oneself as a consumer’ in point 22 of Annex I. Prior to the introduction of point 23c, this provision was used to address fake reviews by the ACM in the Netherlands,92 and a 2018 Commission study on advertising and marketing practices in social media suggests that point 22 could curb the artificial boosting of social proof indicators on social media that is done using either automated programs (bots) or hiring firms (click farms) that achieve the same result manually.93 Both of these practices entail the trader’s fabricating consumer behaviour, as does adding script that randomly generates statements about user activity in the source code of a website.

The 2022 Commission study on dark patterns suggests that deceptive Activity Notifications, like deceptive Low-stock Messages, could fall within the scope of the prohibition in point 7 of Annex I.94 I have already expressed my doubts with regards to the application of this provision to marketing messages that do not explicitly refer to a measure of time in 6.3.1 above. Despite the uncertainty surrounding the application of point 7 to these practices, they are nevertheless very likely to be deemed unfair by virtue of point 22.

B. Truthful Activity Notifications

Activity Notifications that are not false may nevertheless be at odds with the UCPD when they are not specific enough.

Like Low-stock Messages, the Activity Notifications dark pattern is also popular with online accommodation booking platforms, and so it has been addressed in several enforcement actions and guidelines concerning the practices of commercial operators in this sector. The relevant authorities apply the same requirements to both practices: the messages must be truthful and complete.95 Activity Notifications that are vague are very likely to constitute misleading actions, as they could create an unfounded impression of a product’s popularity and decreasing availability (Art. 6(1)(b) UCPD). At the same time, further clarification on what compliance requires in concrete terms beyond the online accommodation booking sector seems necessary. As to the fact that Activity Notifications are often attention-grabbing, transient and recurring, the question of whether their scarcity-suggesting presentation may be an issue under the UCPD is addressed in 6.8.

6.5. Sneaking

6.5.1. Sneak into Basket

The Sneak into Basket dark pattern (Fig. 7) entails adding additional products to a user’s cart, often through the use of pre-checked boxes.96 It relies on our tendency to stick with default options – the default effect.97

Fig. 7: Sneak into Basket on avasflowers.net, where a greeting card is sneaked into the basket98

The CRD contains a specific provision which aims to protect consumers from the exploitation of this behavioural tendency by traders – Art. 22.99

Art. 22 CRD requires that the trader attain ‘the express consent of the consumer to any extra payment in addition to the remuneration agreed upon for the trader’s main contractual obligation’. The provision goes on to specify that the ‘use of default options which the consumer is required to reject in order to avoid the additional payment’ is not equivalent to express consent. A retailer that adds additional products to consumers’ carts through the use of pre-checked boxes will therefore breach Art. 22 CRD.

Pre-checked boxes are not the only means to add extra products to a virtual shopping basket, however. This can also be achieved via a call bundling several products to the website’s Application Programming Interface (API), the software interface enabling communication between a consumer-facing website and the server where it is hosted.100 In such instances the consumer has no opportunity at all to prevent the addition of the product to basket as this process is automated, i.e. they are not given the possibility to opt out before reaching checkout. So what happens when the default is not optional? The CRD aims at a high level of consumer protection,101 and ensuring the effectiveness of the Directive would therefore, in my opinion, require Art. 22 to be read as prohibiting all technical means of implying consent. In other words, as Markou and Riefa suggest, we may want to read ‘express consent’ as requiring positive action.102

As Art. 22 CRD constitutes an absolute prohibition, authorities’ need to rely on the UCPD to address Sneak into Basket is likely to have decreased considerably. In the 2016 UCPD Guidance document, the Commission noted the fact that a national decision applying the UCPD to pre-checked boxes ‘was taken before the entry into application of the Consumers Rights Directive, which has a specific provision on the use of pre-ticked boxes in its Article 22’.103 The UCPD could, nonetheless, serve to fill the gaps left by the CRD if the technical means through which consent may be implied are to be interpreted narrowly.

As Sneak into Basket effectively deprives consumers of an active choice with regard to what products are added to the basket, it could constitute an aggressive commercial practice within the meaning of Art. 8 UCPD. Art. 8’s potential in this regard can be illustrated with reference to the Latvian Patērētāju tiesību aizsardzības centrs’ (Consumer Rights Protection Centre)104 2012 decision against Air Baltic.105 The airline had, at several points in its booking process, pre-selected additional services. The authority considered that pre-selection in this respect amounted to coercion within the meaning of Art. 8 UCPD, as the relevant design choices imposed onerous barriers to consumer choice, effectively forcing consumers to choose the offers benefitting the airline. This interpretation of Arts. 8–9 is consistent with the fact that inertia selling, which also entails the lack of express consent, is listed as an aggressive commercial practice in Annex I.106 However, it should be noted that, at EU level, the Court is yet to provide an interpretation of ‘coercion’. As discussed in the previous chapter, the UCPD only defines one of the forms of aggression it prohibits – undue influence. The only guidance in this respect stems from AG Campos Sanchez-Bordona’s opinion in Wind Tre,107 a case concerning two Italian telecom operators’ practice of selling SIM cards with pre-loaded and pre-activated internet browsing and voicemail services that consumers had not been informed about. AG Campos Sanchez-Bordona argued that what distinguishes coercion and harassment from undue influence is that the former forms of aggression require active conduct on the trader’s behalf;108 he does, however, go on to establish in the following paragraph that undue influence requires actively pressuring a consumer.109 So it would seem that all forms of commercial aggression require some sort of action on the part of the trader, and the AG referring to active conduct in this context is an attempt to distinguish between (mere) omissions of information (which are misleading) and aggressive practices.110 However, as Kaprou points out, a distinction between the two types of commercial practices collapses if we consider that a trader could have chosen to omit information.111 In any event, sneaking a product into a consumer’s basket entails an action.

The greatest potential impediment to considering Sneak into Basket an aggressive commercial practice is the average consumer test. In his opinion in Orange Polska,112 AG Campos Sanchez-Bordona distinguished between online and telephone sales. The AG argued that there is a different average consumer in these two settings.113 He seems to have high expectations of the average online consumer, who is expected to have a minimum level of familiarity with online processes and the ability to handle them at least until placing an order.114 This ability to handle placing an order could entail being able to spot an additional product before finalising the order and removing it from the basket.

All in all, the CRD provides a more clear-cut solution in this regard through prohibiting at least those instances of Sneak into Basket that make use of pre-checked boxes in Art. 22, but some further guidance as to what other technical means could be used to imply consent seems necessary. Under the UCPD, the average consumer would likely be expected to de-select boxes they had not selected themselves, or to remove undesired items from their basket.

6.5.2. Hidden Costs

The Hidden Costs dark pattern (Fig. 8) discloses new and sometimes unusually high charges (such as service fees or handling costs) to users at a late stage in the purchasing process, often right before confirming an order.115 This dark pattern relies on the sunk-cost fallacy.116

Fig. 8: Hidden Costs on proflowers.com; the Care & Handling charge is only disclosed at the last step117

Hidden Costs is also known as ‘drip pricing’118 and ‘price partitioning’;119 it is, however, more common to regard drip pricing as a subtype of price partitioning that involves the sequential disclosure of costs.120 Hidden Costs is particularly prevalent in sectors where there is intense pricing competition,121 such as the airline industry.122 The EU legal framework has been criticised for not clearly banning drip pricing123 and, more generally, for not accounting for the timing dimension of information disclosure to a sufficient extent.124

The price is one of the items of information listed in Art. 6(1).125 Art. 7(4)(c) UCPD denominates the ‘price inclusive of taxes’ and delivery costs as a material item of information for the purpose of invitations to purchase. The CRD goes even further in this respect and requires, in addition to the price information mandated by the UCPD, that traders disclose ‘any other costs’.126 This information has to be disclosed to the consumer ‘directly before the consumer places his order’;127 Recital 39 CRD clarifies that this entails that the information be displayed in the close vicinity of the confirmation requested for placing the order. Under the CRD, therefore, full price information can be disclosed at a late(r) stage in the purchasing process, and its provisions are thus unsuitable to protect consumers from the Hidden Costs dark pattern.

As discussed in section 6.5.1 above, Art. 22 CRD requires traders to secure the express consent of consumers for any additional payments, and the authors of the Commission’s study on dark patterns mention this provision in relation to Hidden Costs.128 This provision only applies to optional charges, however.129

It should be recalled that the information duties under the CRD also constitute material information for the purposes of Art. 7(1) UCPD, which prohibits misleading omissions, by virtue of Art. 7(5) UCPD, which grants information duties contained in other EU legal instruments the status of ‘material information’. As discussed in Chapter 5,130 the Commission has stated in the UCPD Guidance that complying with the requirements laid down by the CRD for the pre-contractual stage already at the stage of invitation to purchase should also ensure compliance with Art. 7(4) UCPD. However, as seen above, traders have no obligation (under the CRD) to disclose full price information at the invitation to purchase stage. Should the situation be considered under Art. 7(1) jo. (5) UCPD, what is the role of Art. 8(2) CRD? It seems highly implausible that disclosing full price information in a clear manner right before checkout and therefore complying with Arts. 6(1)(e) and 8(2) CRD could raise issues under Art. 7(1) UCPD. Therefore, insofar as the timing aspect of price disclosures is concerned, the UCPD offers more fruitful ground for assessment, as its provisions are applicable already from the advertising stage.

Turning now to the UCPD, it is necessary to draw a distinction between goods and services. This necessity is the consequence of the Court’s decision in Citroen/ZLW.131 Citroen/ZLW concerned a car dealership’s newspaper advertisement for a car, which mentioned the price of the vehicle with an asterisk referring to a disclaimer at the bottom of the page, which specified that mandatory fixed transfer costs were payable. The referring German court asked the CJEU whether the advertisement could be considered an ‘offer’ under the Price Indication Directive (PID)132 and, if so, whether PID, which only applies to offers for the sale of goods,133 required the selling price of the product – defined as ‘the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes’134 – to include the fixed mandatory charges. Additionally, the national court wondered whether the same is required under Art. 7(4)(c) UCPD. As Duivenvoorde explains, for a long time in consumer scholarship, PID, which requires sellers of goods to display both the selling price of a product and the unit price,135 was deemed to essentially govern the comparison of ‘prices of different jars of peanut butter, without having to calculate the price per kilogram for each jar’.136 AG Mengozzi shared this view: he stated in his opinion that ‘Directive 98/6 is intended to make it easier for the consumer to compare the price of a kilogram of tomatoes’.137 Surprisingly, the Court held that the provisions of PID with regard to price indication are more specific that those of the UCPD (meaning that the PID takes precedence),138 and that the specification of a ‘final selling price’ under PID requires the headline price of a good to incorporate unavoidable and foreseeable costs.139 As Duivenvoorde points out, the requirement to provide complete price information is more absolute under PID.140 This requirement also applies earlier – from the advertising stage.

This decision has been heavily criticised by Duivenvoorde, who calls the decision a ‘mistake, which sooner or later needs to be corrected’141 in light of the fact that PID, as opposed to the UCPD, is a minimum-harmonisation instrument, and so Citroen/ZLW opens the door to the imposition of additional national requirements with regard to the advertisement of prices.142 The result of Citroen/ZLW is also a fragmentation of the rules governing the indication of prices of goods and services in early B2C interactions (the CRD applies to both later). This may be particularly problematic because, as I will argue below, the UCPD is not as clear on when and how complete price information has to be disclosed. The authors of the 2017 Commission study for the REFIT Fitness Check recommended that PID be incorporated into the UCPD or CRD to streamline price information requirements post-Citroen/ZLW.143 This was not something the Omnibus Directive achieved.

What does the UCPD require in this respect? As Micklitz points out, ‘the distribution of half-truths surely is an action; the repressed part of such information is at the same time an omission’.144 The use of the Hidden Costs dark pattern by a retailer could therefore result in both a misleading action145 and a misleading omission (due to untimely provision of information)146 under the UCPD. It should be noted, however, that the elements of the price listed in Art. 6 and Art. 7(4)(c) UCPD do not fully coincide. Art. 7(4)(c) refers to the price inclusive of taxes and delivery costs, whereas Art. 6(1) concerns ‘the price or the manner in which the price is calculated, or the existence of a specific price advantage’. Neither provision mentions additional and unavoidable charges. In the 2021 UCPD Guidance, the Commission takes the view that Art. 7(4)(c) refers to the total (i.e. final price), including all applicable charges and taxes which are unavoidable and foreseeable when the offer is published.147 This position also transpires from the results of the 2018148 and 2020 sweep of online shopping websites,149 where one of the identified ‘irregularities’ entailed not disclosing information about extra unavoidable charges until checkout, as well as from a host of other CPC Network actions in the online accommodation booking sector.150 Further, the Commission’s interpretation is also followed by some national authorities. In its 2010 study on price advertising practices, the Office of Fair Trading (the predecessor of the UK CMA) recommended the inclusion of all compulsory charges in the headline price.151 In 2012 the authority took action against 14 airlines for not including payment surcharges in their headline prices, which the agency considered a misleading practice.152 The UK CMA has also taken an active role in policing drip pricing in the online booking153 and car rental sectors.154 In its 2023 guidelines on online consumer protection, the Dutch ACM states that businesses ought to ‘display the total price, including all additional costs [...] from the first moment [they] offer a product at a certain price’.155

Notwithstanding this vast body of enforcement practice, the lack of an explicit reference to other foreseeable and unavoidable charges in Art. 7(4)(c) is worrying in light of the Court’s position that the information elements listed in Art. 7(4) are exhaustive.156 This was also the position of AG Mengozzi in Citroen/ZLW – the AG concluded that

Article 7(4)(c) of Directive 2005/29 must be interpreted as meaning that the material information relating to price need not, in the context of an invitation to purchase and whatever the circumstances, take the form of a total final price including not only the price of the product but also all the other components of the final price that will have to be paid by the consumer.157

We could still turn to Art. 6(1)(b) and Art. 7(1) UCPD; there is some potential in applying these provisions, as the Court has indicated that it takes price information (or lack thereof) seriously.158 Some guidance on how Hidden Costs may be assessed under these provisions may be extracted from the Court’s decision in Canal Digital Danmark.159 Canal Digital Danmark concerned a Danish television services providers’ advertisements on TV, on its homepage and its internet banner ads, which varyingly emphasised a monthly price for a TV subscription while indicating a six-monthly credit card surcharge in less prominent terms. The Court first points out that the assessment of an omission based on Art. 6 UCPD is stricter, as this provision, in contrast to Art. 7, does not make allowances for the limitations of a communication medium.160 The Court then offers some pointers for national courts to determine whether the practice would be prohibited by Art. 6 UCPD. In terms of assessing the potential of the practice to mislead, national courts ought to, having regard to all the relevant circumstances, assess whether the commercial communication has the effect of suggesting an attractive price.161 In casu, the Court points out that offers for TV channels are typically highly structured, and therefore characterised by a high degree of information asymmetry; in other words, the nature of the product matters. What also matters is the overall presentation of the offer.162 As to the potential of the practice to influence the transactional decision of an average consumer, while acknowledging the importance of price information, the Court states that it is particularly important to take into account whether the omitted or less visible component of a price represents a significant element thereof.163 While the Court’s decision in Canal Digital Danmark entails that at least some instances of Hidden Costs may infringe the UCPD, it does not help us draw clear dividing lines between compliant and non-compliant presentations of price information. It does appear clear that the Court does not deem it necessary for headline prices under the UCPD to incorporate all foreseeable and unavoidable charges: Canal Digital Danmark was decided after Citroen/ZLW, and the Court did not take up the opportunity to interpret the UCPD in light of the PID. Instead, in assessing whether the practice would be unfair with reference to the average consumer under Art. 6(1) UCPD, we need to take into account the kind of product offered and the offer presentation in individual cases – i.e. where and how the additional costs are disclosed – as well as whether the Hidden Costs are substantial; this is also Straetmans’ interpretation of the judgment.164 This reading is consistent with scholarly interpretations that preceded the judgment: Van Boom wrote in 2011 that ‘the UCP Directive [...] [does not address] this issue – therefore, it will depend on the specifics of a given case whether such partitioning can be considered presenting price information in an unclear, unintelligible, ambiguous or untimely manner’.165

Summing up, it seems that when it comes to complete price information for goods, the PID requires traders to include all unavoidable and foreseeable costs in the headline price as of the advertising stage. For services, the UCPD appears to require a case-by-case assessment. It is hard to find a justification for the seemingly divergent price information requirements stemming from the PID and the UCPD. It is also easy to envisage situations in which it may be hard to figure out which instrument applies, such as mixed-purpose contracts with a sales component and a services component (think of a recurring subscription for goods). It could also be the case that national law is applicable. The PID carves out leeway for Member States (MS) to apply different (national) rules to mixed-purpose contracts in Art. 3(2), but the UCPD is still applicable to them, as it governs the promotion of products generally. Would MS be breaching the no-more-national-prohibitions-of-commercial-practices stance of the UCPD by adopting differing rules under the PID? Or is this no longer a matter of EU law? These are all fascinating – and unanswered – questions that lead me to conclude that we may want more legal certainty with regard to a matter as important to consumers as price information and when and how it ought to be presented. Further, if we take the Court's assertion in Canal Digital Danmark to the effect of price information being particularly important for consumers, and couple it with insights from behavioural economics as to how we may omit even particularly important information in a situation of information overload,166 we may want to make sure that (complete) price information is not just visible, but rather more visible.

6.5.3. Hidden Subscription

The Hidden Subscription dark pattern (Fig. 9) entails that users are charged a recurring fee under the pretence that they are paying a one-time fee or getting a free trial.167 The practice of auto-renewing subscriptions relies on the default effect.168

Fig. 9: Hidden Subscription on wsjwine.com. Finding out about the recurring nature of the subscription requires the consumer to click on ‘Learn More’169

This practice has been within the purview of the European Commission, as well as consumer organisations and authorities, for some time now, albeit under a different name – ‘subscription traps’. A 2017 Commission study on ‘Misleading “Free” Trials and Subscription Traps for Consumers in the EU’ found that 66% of the surveyed consumers had signed up for free trials online. Of these consumers, 21% had experienced one or more problems related to the trial; 18% of the respondents who had run into issues reported that they had not been aware that they had entered into a subscription.170 The European Consumer Centre Sweden and the Swedish Consumer Agency estimated in 2017 that 3.5 million consumers in six EU MS have accepted an online offer that led to a subscription trap over the previous three years.171 The Finnish Competition and Consumer Authority reported that around 200,000 consumers fall prey to subscription traps in Finland alone, based on the results of a survey carried out in 2018.172 So how does the law fare with the Hidden Subscription dark pattern? This would likely hinge on whether information is missing entirely (A) or is obfuscated in some way (B).

A. Missing information

Where information about the subscription or its automatically renewing nature is missing altogether, we may doubt whether the consumer has consented to taking out a (renewing) subscription; in other words, we may be dealing with an aggressive commercial practice. One of the aggressive commercial practices that is prohibited in all circumstances is inertia selling.173 Point 29 of Annex I UCPD defines inertia selling as ‘demanding immediate or deferred payment for [...] products supplied by the trader, but not solicited by the consumer’. In Wind Tre,174 the Court addressed the definition of ‘inertia selling’ for the first time. The case concerned the sale by two Italian telecom operators of SIM cards with pre-loaded and pre-activated internet browsing and voicemail services. The Court held that a consumer cannot be deemed to have solicited a service where they have not been clearly and adequately informed neither of the cost of the services in question nor of the fact that they were pre-loaded and pre-activated on the SIM card.175 The Court also stressed that the use of the services in question by the consumer did not constitute implied consent to their provision.176 As AG Campos Sánchez-Bordona pointed out in his opinion,177 and the Court affirms in its judgment, it is not enough for the supply in question not to have been ‘solicited’ by the consumer; the trader must also demand payment for that service.178 Therefore, it is important to stress that Hidden Subscriptions will only amount to inertia selling where the trader attempts to charge the consumer. Technologically, that is not something that the Mathur et al. study verified; however, as the authors explain, it is often when they are billed that users find out about the subscription.179 To sum up, under the UCPD, traders may not bill consumers for services they have not sufficiently informed them about.

It is also relatively easy to envisage that a complete lack of information about the main characteristics of the product (a subscription)180 and of its price181 may constitute a misleading omission under the UCPD as early as the invitation-to-purchase stage (Art. 7(4)). While Canal Digital Danmark (section 6.5.2) entails that omissions of price information are to be judged on a case-by-case basis, a complete omission of price information would arguably pass the test with flying colours. Further, claiming that consumers are merely signing up for a free trial when they are actually signing up for a subscription may constitute an (additional) breach of the UCPD. Point 20 of Annex I prohibits the description of a product as ‘free’ where the consumer has to bear any charges aside from the unavoidable costs associated with responding to an advertisement or the delivery of the product.

The CRD contains several mechanisms that were introduced to deal specifically with ‘internet cost traps’ – not-so-free trials, as De Franceschi points out.182 Art. 6(1)(a) CRD requires the disclosure of the main characteristics of the product. With regard to the price of subscriptions specifically, the CRD stipulates that ‘the total price shall include the total costs per billing period’.183 Not disclosing – at all – at the pre-contractual stage either the fact that consumers may be signing up for a subscription or the price thereof would arguably amount to breaches of the CRD, which imposes less variable information requirements than the UCPD. Let us now turn to what clearly and adequately informing consumers as required by Wind Tre would entail under the UCPD and CRD.

B. Obfuscating subscription information

Of course, not all instances of Hidden Subscription are going to be so flagrant (as to completely omit information); traders may disclose the product description and costs in the T&Cs, make the information available via an expandable ‘Learn More’ section or place it on the order confirmation page in a non-obvious way. As the Commission explains in the 2021 UCPD Guidance, such practices could constitute misleading actions (Art. 6) as well as misleading omissions under Art. 7 UCPD, which applies not only to pure omissions, but also the hiding of information (Art. 7(2)).184 Whether the hiding of subscription information would be deemed unfair under the UCPD is to be assessed on a case-by-case basis, however. As a consequence, we could expect significant variability in decisions as to the potential of a particular interface design to mislead depending on how hard it may be for an average consumer to find this information.

As we saw above, the CRD was intended to deal with these sorts of commercial practices; as Leahy points out,185 in the 2021 UCPD Guidance document the Commission even seems to lean towards the application of the CRD provisions to issues concerning signing up for subscriptions.186 Information about the product characteristics (Art. 6(1)(a)) and subscription price per billing period (Art. 6(1)(e) CRD)) is subject to several information quality requirements under the CRD. Art. 6(1) requires that information be ‘clear and comprehensible’. Art. 8(1) requires this information to be made available in ‘plain and intelligible language’. Art. 8(2) adds the additional requirement of making the consumer aware in a ‘clear and prominent manner’ of the information in question. The Directive does not provide definitions for, nor clarify the relationship between these requirements; this is something consumer law scholars have been ringing the alarm about since the early days of the CRD,187 and are still concerned about today.188 Of the listed requirements, ‘clear and prominent’ seems to be the only one with the potential to tackle visual, rather than linguistic information quality indicators, and it is also directly relevant for e-commerce websites. I will therefore focus on this requirement.

Recital 39 CRD states that the information elements covered by Art. 8(2) have to be displayed ‘in the close vicinity of the confirmation requested for placing the order’ so that ‘the consumer is able to fully read and understand the main elements of the contract before placing his order’. It should be noted that in its recent judgment in Tiketa, the Court held that the CRD ‘merely manages the content of the pre-contractual information to be provided to the consumer’ and does not prohibit the use of certain means of communication, concluding that ‘there is nothing to prevent the information provided for in Article 6(1) of that directive from being brought to the consumer’s attention [...] in the general terms and conditions [...] which that consumer accepts by ticking the box provided for that purpose’.189 The judgment concerned, however, the interpretation of Art. 8(1) CRD, which merely provides for the provision of information in a way that is suitable to the used means of communication, whereas Art. 8(2) requires that information be presented prominently, suggesting stronger requirements with regards to the display of information.190 The Court’s decision in Tiketa should still alarm us, as it shows that the Court does not seem overly concerned with the fact that a not-so-average consumer may overlook other items of relevant information because they are piled up in T&Cs. As Morais Carvalho notes, ‘it seems clear that acceptance of the information transmitted by means of a reference to terms and conditions is nothing more than a fiction of knowledge (and approval)’.191

Returning to Art. 8(2) CRD, that these information presentation requirements are stronger does not make them any more clear. Recital 39 clarifies the timing issue – the information has to be presented directly before the consumer places their order – but the features that would make information fully readable remain a mystery. Importantly, the information may be readable in the sense that it is on the screen, but still not noticeable due to its colour and size, as well as accessibility (when it is in a collapsed ‘Learn More’ section), which may render it readable only in theory. As Schaub points out, while the added value of Art. 8(2) CRD is that it could stimulate user-friendly web design, ‘how the trader must design the website in order to comply with this is a separate question’.192 This separate question remains unanswered.

A further measure to tackle Hidden Subscriptions that is laid down in the CRD is the so-called ‘button solution’.193 Whenever an order placed by a consumer entails an obligation to pay (as does a subscription contract) and it is to be completed by clicking a button or a ‘similar function’, Art. 8(2) provides that the button – or function – ‘shall be labelled in an easily legible [emphasis added] manner only with the words “order with obligation to pay” or a corresponding unambiguous [emphasis added] formulation’. What kind of information presentation would be considered ‘easily legible’ is not clear. Neither is it clear what other kinds of ‘unambiguous’ formulations would be compliant with the provision. The Court has not yet had a chance to discuss either ease and/or legibility, or how these requirements relate to the other information quality requirements in Arts.6 and 8 CRD, but it was presented with a chance to express itself on an online accommodation booking platform’s use of the words ‘confirm booking’ in Fuhrmann-2.194 The Court held that it is up to the national (German) court to assess whether the term ‘booking’ may be associated with the creation of an obligation to pay both in everyday German language and ‘in the mind of the average consumer’.195 Fuhrmann-2 is thus a missed opportunity to provide clarity for both traders and national authorities on the meaning of a fully harmonised legal formulation at European level. As Luzak et al. put it, the Court’s deference to national courts in this regard ‘almost invites diverging interpretations, even at the national level’.196

Interestingly, Hidden Subscription was included in the CPC Network’s 2023 sweep on dark patterns: the press release states that ‘23 websites were hiding information with the aim of manipulating consumers into entering into a subscription’.197 What kind of hiddenness was at stake is not clear, however. As seen above, unfairness under the UCPD would have to be assessed on a case-by-case basis, and the CRD also leaves a lot to the imagination when it comes to the mechanisms it has introduced to tackle this practice specifically.

Lastly, while the current regime does provide for pre-contractual disclosure of subscription information, it does not require the repeated disclosure of this information at the times when it may be most relevant to consumers: when a free trial transitions into a paid subscription or when the latter is renewed, i.e. at a post-contractual stage.198 As also highlighted in the 2016 study on misleading free trials and subscription traps commissioned by the Commission,199 automatic renewal relies on behavioural inertia, which may make us succumb to defaults;200 without a reminder about the subscription, we are less likely to cancel it. The Court’s recent decision in Sofatutor201 confirms that the CRD is only concerned with the pre-contractual aspect of this practice. Sofatutor is an online learning platform provider that offered consumers 30-day free trials that transitioned into paid, auto-renewing subscriptions. The Court was asked whether automatic conversion of free trials into paid subscriptions and automatic renewals could breach Art. 9(1) CRD by restricting consumers’ right of withdrawal, as the consumer is not provided with an opportunity to withdraw when the contract is converted and each time it is extended. The Court took the view that the main aim of the right of withdrawal is to give the consumer an opportunity to become aware of the characteristics of the service, as well as to take an informed decision on whether they want to be contractually bound to a trader.202 The Court deems this purpose fulfilled when the consumer has been provided with clear, comprehensible and explicit information on the price of the services at a pre-contractual stage,203 provided that the terms of the contract do not change in the meantime.204 Accordingly, consumers have the right to withdraw only once from a free trial that turns into a recurring subscription (unless the terms change).205 As Jablonowska puts it, the Sofatutor ruling betrays the Court’s ‘apparent ignorance of the real problems that consumers are facing in the subscription economy’.206 An automatically renewing subscription contract may run for years and years, and while the average consumer may be expected to remember to cancel it, it is questionable to expect this of real consumers.

6.6. Hard to Cancel

Hard to Cancel entails making it easy for users to sign up for a subscription online, but (more) difficult to cancel (Fig. 10).207 Mathur et al. (2019) observed that in many instances, the analysed websites did not disclose to users in advance that cancelling the subscription could not be done in the same way as signing up for it (Fig.11).208 Further, the Hard to Cancel dark pattern was noted to frequently appear with the Hidden Subscription dark pattern.209

Fig. 10: Hard to Cancel on savagex.com, where the offline cancellation procedure is disclosed210

Fig. 11: Hard to Cancel on sportsmanguide.com, where the cancellation procedure is only disclosed in T&Cs211

Consumer watchdogs have long been aware of the prevalence of this practice. Difficulty unsubscribing was the most frequently reported issue (34%) in the 2017 Commission study on subscription traps.212 A 2020 survey by the Forbrukerrådet, which is the Norwegian Consumer Council (NCC), found that 26% of the surveyed consumers had experienced issues with unsubscribing from a digital content service at some point.213

Two features of the Hard to Cancel dark pattern make it relevant in terms of consumer law: lack of information on how a subscription may be cancelled (6.6.1) and the friction that may be added to the cancellation process, which may be exacerbated by that lack of information (6.6.2). It should be noted at the outset that the EU consumer acquis provides consumers with a cooling-off period of 14 days (save for some exceptions)214 when transacting online, during which time they may choose to withdraw from a contract without giving any reason.215 The right of withdrawal may be of added value when a consumer wants to cancel a subscription relatively soon after taking it out. The discussion below will therefore discuss the expectations the current legal framework has of traders with regard to both the right of withdrawal and cancellation procedures generally.

6.6.1. The lack of information on the cancellation procedure

Information on the cancellation procedure may be relevant to consumers at two stages: before they sign a contract (sub-section A) and when they wish to terminate it (sub-section B).

A. Pre-contractual disclosure

With regard to information on the right of withdrawal, the CRD provides that information on the existence of, and the conditions, time limit and procedures applicable to, the right of withdrawal must be disclosed to the consumer before the contract is signed; traders must also provide consumers with the model withdrawal form set out in Annex I(B) CRD.216 To that effect, the Directive introduces model withdrawal instructions in Annex I(A) CRD. Where traders elect to use the model withdrawal instructions, they will be deemed to have complied with their disclosure duties with regard to the right of withdrawal.217 The legislative choice to standardise – albeit not in a mandatory manner – the textual requirements with regards to withdrawal information was driven by the belief that standardisation could both enhance legal certainty for traders and simplify the withdrawal process for consumers.218 We will discuss whether the simplification aim has been achieved below (6.6.2). As to legal certainty, standardised textual requirements can indeed provide more legal certainty, but this is arguably just part of the recipe – traders also need guidance as to information presentation. Presentation-wise, withdrawal information under the CRD is only subject to the requirements of Art. 8(1). As we saw above (section 6.5.3), the Court ruled in Tiketa that information elements subject to Art. 8(1) CRD may be disclosed in the T&Cs. Should the trader try to obfuscate this information further, Art. 7(5) UCPD, by virtue of which the information requirements in Art. 6(1) CRD are deemed material information, may become relevant. Whether the attempts to obfuscate this information could influence the average consumer would, however, need to be assessed on a case-by-case basis.

It is also conceivable that the UCPD may require traders to disclose to consumers before they sign a contract how a subscription may be cancelled; it should be recalled that Art. 7(1) UCPD imposes a general duty of disclosure on traders.219 The legal analysis in the 2017 Commission study on subscription traps suggests that the omission of information about the cancellation procedure could constitute a breach of Art. 7 UCPD (albeit without further elaboration).220 This interpretation of Art. 7(1) is particularly likely given that not providing the consumer with information could impact the consumer’s freedom of choice (when it comes to ending their subscription); the CJEU has stressed the key role information plays in securing freedom of choice in Wind Tre,221 as we saw above. What is less clear is when and how this information ought to be disclosed so as not to influence the transactional decisions of the average consumer. The CRD provides a more explicit framework in this regard: Art. 6(1)(o) requires, for contracts subject to automatic renewal (as many online subscriptions are), the disclosure of information on the ‘conditions for terminating the contract’. This item of information is, however, subject to the same (vague) presentation requirements as price and product information under Art. 8(2) CRD, which we looked at in 6.5.3.

B. Post-contractual availability of information

After the contract is signed, Art. 8(7) CRD obliges traders to provide the information items required by Art. 6(1) on a durable medium. The Directive defines ‘durable medium’ as any instrument enabling the consumer to store information personally addressed to them in a way that is both unchangeable and retrievable for future reference for a reasonable period of time.222 Recital 23 lists 'paper, USB sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers as well as e-mails’ as examples of durable media. As Markou explains,223 the definition of ‘durable medium’ reflects the Court’s decision in Content Services,224 a case that concerned the interpretation of the Distance Selling Directive (DSD), which was repealed by the CRD.225 In Content Services, the Court found that a hyperlink on a trader’s website does not amount to a durable medium within the meaning of the DSD.226 In the 2021 CRD Guidance, the Commission states that a consumer’s private account on the trader’s website where the trader uploads the relevant information could be considered a durable medium provided that the trader cannot remove and change it unilaterally.227 How that could be achieved technically is an open question. In the Netherlands, the ACM advises traders to ‘make sure that consumers are able to find that information easily on [the] website at any other time. That means presenting that information in a logical place, behind a link with a logical name’.228 While it is hard to disagree with the Commission and the ACM on the fact that the not-so-average consumer may very well lose track of either the paper or e-mail detailing information on withdrawal or termination procedures, they are not the consumer the CRD protects. An absence of information about how withdrawal or cancellation is to be effected on the general portion of a trader’s website or in the consumer’s account on that website is therefore not evidence of a breach of a trader’s information obligations under the CRD. Given the specificity (not overall, but in comparison to the UCPD) of the CRD provisions it is likely that there is no room for the UCPD to apply to this;229 even if it did, it would still leave unanswered questions as to how to present this information. The UCPD could, however, be used to challenge the fairness of the withdrawal/cancellation procedure in toto, as we will see in the next section. That being said, not providing consumers with information on their right of withdrawal and/or the cancellation procedure on a durable medium will amount to a breach of Art. 8(7) CRD. This kind of breach may also solidify the case for a finding of aggressiveness under the UCPD, as discussed in the previous sub-section. In this vein, the Bulgarian Supreme Administrative Court found that a mobile operator’s practice of requiring consumers to submit an application form on company paper on the last day of the contract term to the operator’s business premises, which was not detailed in the general contract terms and could result in undesired automatic renewals, constituted an aggressive commercial practice.230

6.6.2. Friction in withdrawing and cancelling

What, then, of the traders’ practice of making consumers jump through hoops in order to withdraw from or cancel a subscription?

With regard to the right of withdrawal, as seen above, the CRD requires traders to make the model withdrawal form available via a durable medium. As to the means of communication through which withdrawal is to be effected, the CRD leaves this up to the consumer by placing the burden of proof for exercising the right of withdrawal on them.231 In light of this, Recital 44 CRD states that it is in consumers’ interest to use a durable medium for this purpose. Not every durable medium will guarantee that the consumer is able to supply evidence as to their withdrawal; a regular letter, arguably, would not do the job.232 Also, where e-mail is used, it is up to the consumer to prove that the trader received their e-mail, which is virtually impossible.233 Accordingly, (some) traders may have an incentive to deny the receipt of withdrawal statements.234 In practice, this means that the only safe bet for consumers to exercise this right is to use paid – and expensive – registered post.235 The proportionality of this legal solution, particularly in light of the fact that signing up for a subscription is a straightforward online process, is dubious at best, as Sørensen et al. point out.236 Although the CRD does acknowledge that in today’s day and age ‘many consumers and traders prefer to communicate via the trader’s website’ (Recital 45) and allows traders to implement withdrawal forms on their websites, it does not engage with the design of the online withdrawal procedure aside from (re-)stating, in Art. 11(3) that consumers may use either the model withdrawal form or any other unequivocal statement. This omission is likely premised on the fact that web-based exercise of withdrawal is clearly seen as supplementary to other means of communication in the CRD.237 This omission could, however, open the door to the implementation of dark patterns in this process. As the design of the withdrawal procedure is not something the CRD concerns itself with, we will come back to this matter when discussing the UCPD below. Another crucial question the CRD does not answer in this regard is how a consumer is supposed to prove that they have filled out a form on the trader’s website if they never receive confirmation of cancellation. The current rules on the exercise of the right of withdrawal present plenty of opportunities for their abuse by traders willing to do so.

The potential – and limitations – of the UCPD to address friction in cancellation processes can be illustrated with reference to the CPC Network’s coordinated action against Amazon.238 In January 2021, the NCC published a study documenting the dark patterns they encountered in trying to unsubscribe from Amazon Prime on amazon.com using a mobile browser.239 These included Confirmshaming, Visual Interference and Hard to Cancel. On the whole, it took at least seven clicks to unsubscribe. Subscribing to Amazon Prime, by contrast, could be achieved via only a few clicks. Following the study, the NCC submitted a legal complaint against Amazon to the Forbrukertilsynet,240 and several European and US consumer organisations urged their national authorities to investigate Amazon’s practices.241 In its legal complaint to the Forbrukertilsynet, the NCC argues that the unsubscribing process constitutes an aggressive commercial practice under Art. 8 UCPD, as it imposes ‘onerous or disproportionate non-contractual barriers [...] where consumers wish to exercise rights [...] to terminate a contract’ (Art. 9(d) UCPD),242 and that, generally, it should be as easy for a consumer to get out of a contract as it is to enter that contract.243 The 2021 UCPD Guidance echoes the issues the NCC raises with regard to the Hard to Cancel dark pattern. Accordingly, the Guidance stipulates that, in designing their interfaces, traders should ‘follow the principle that unsubscribing from a service should be as easy as subscribing to the service, for example by using the same methods previously used to subscribe to the service or differing methods as long as the consumers are presented with clear and free choices, proportionate and specific to the decisions they are being asked to make’.244 In the Netherlands, the ACM takes the stance that cancellation by means of an online form must be possible where it is possible to take out the subscription by means of an online form.245

Several consumer watchdogs therefore take the view that subscription cancellation should be as easy as sign-up. Does that mean that unsubscribing from a service should be possible online? In Mathur et al.’s dataset, most websites required users to contact customer service in order to cancel their subscription. While this process may be different from how sign-up takes place, that does not necessarily render it unfair. The CRD246 requires the trader to provide the consumer with the trader’s contact details (telephone number, e-mail address or other means of online communication). The means of communication provided by the trader must enable the consumer to ‘contact the trader quickly and communicate with them efficiently’.247 In Amazon EU, the Court stressed that the ability to contact the trader is ‘of fundamental importance for ensuring and effectively implementing consumer rights’ (the right in casu was that of withdrawal).248 This suggests, in my opinion, that requiring that cancellation is to be effected by phone or e-mail (or an equally quick or quicker medium) will likely be deemed acceptable where the consumer has been adequately informed on the procedure in advance. Further, it is highly unlikely that the Court would find that an average consumer’s expectations under the UCPD have been frustrated where they have been adequately informed of the cancellation procedure a priori (we may still want to establish what ‘adequately’ means, however). Accordingly, in the 2021 UCPD Guidance, the Commission mentions making it possible for the consumer to use the same means for subscribing and unsubscribing as merely an example of good practice in this regard, and traders may use different methods as long as ‘consumers are presented with clear and free choices, proportionate and specific to the decisions they are being asked to make’.249 Instead, therefore, it is the insertion by the trader of additional and unnecessary friction into the process (e.g. not adequately informing consumers about the procedure, asking them to detail why they are cancelling the contract, not responding to e-mails/calls, making the procedure lengthy and convoluted while trying to entice the consumer to continue the contract through Confirmshaming, as Amazon did) that could cast doubt on its fairness. Burdensome cancellation processes are the digital equivalent to not letting a consumer leave a shop – they have to defer to the digital choice architecture set up and controlled by the trader, much as a shopkeeper controls the shop door. Without an alternative to going through a burdensome cancellation process, the consumer’s freedom of choice is very likely to be affected, resulting in an aggressive commercial practice. In this vein, following the NCC complaint against Amazon, the CPC Network engaged in a dialogue with Amazon, as a result of which the e-commerce giant committed to enabling EU and EEA consumers to unsubscribe from Amazon Prime with just two clicks, using a prominent ‘cancel’ button.250

At the same time, while the coordinated action against Amazon is illustrative of UCPD’s potential to tackle at least some instances of Hard to Cancel through its prohibition of aggressive commercial practices, it is still unclear when friction in the cancellation process crosses the boundary into ‘onerous or disproportionate non-contractual barriers’.

6.7. Misdirection

6.7.1. Pressured Selling

Pressured Selling (Fig. 12) refers to steering users to purchase either more expensive versions of a product (upselling) or related products (cross-selling).251 This practice may rely on a variety of behavioural channels: the default effect (where an option is pre-selected), scarcity bias (where users are urged to upgrade purchases) and the anchoring effect (where a more expensive option is pre-selected).252

In Mathur et al.’s dataset,253 Pressured Selling manifested as:

1. pre-selection of:

   1. a more expensive product variation,

   2. a higher product quantity, or

   3. a membership;

2. pop-ups urging users to ‘upgrade’ their purchase (by increasing the quantity or adding related products);

3. prompts on the cart/product page urging users to ‘upgrade’ their purchase (by increasing the quantity or adding related products).

Fig. 12: Pressured Selling on topcoat.store254

At the outset, I would like to make a note on (1). What is pre-selected matters in terms of law. The pre-selection of a more expensive product variation (a) tries to get consumers to purchase a different product. Pre-selecting a higher product quantity (b) or a membership (c) entails pressuring them to buy additional products. In that regard, there is no legally relevant distinction between the Sneak into Basket dark pattern (6.5.1) and this particular Pressured Selling tactic, aside from the technical means through which pre-selection is implemented. As I argue in section 6.5.1, the way pre-selection is implemented should not matter in this respect if we want to ensure a high level of consumer protection. Therefore, the legal treatment of (1)(b) and (c) will be the same as that of Sneak into Basket.

The pre-selection of a more expensive product variation (1(a)) is reminiscent of ‘bait and switch’, a practice prohibited by point 6 of Annex I UCPD. ‘Bait and switch’ entails ‘[m]aking an invitation to purchase products at a specified price and then [...] refusing to show the advertised item to consumers [...] with the intention of promoting a different product’. ‘Bait and switch’ within the meaning of the UCPD should not be conflated with the Bait and Switch dark pattern from Brignull’s original taxonomy, although the Commission does conflate them in the 2021 UCPD Guidance,255 as does the UK CMA in its study of online choice architectures.256 While not unrelated, Brignull’s Bait and Switch is of a wider scope, encompassing all design elements that result in ‘a different, undesirable thing’ other than what the user set out to do, regardless of whether that undesirable thing concerns their economic decisions.257

Point 6 was, of course, drafted for a different time and circumstance. What could constitute a ‘refusal to show the advertised item’ in an online setting? This requirement could be read as making it very difficult, if not almost impossible, for the consumer to proceed with their original choice. We could instead question whether the consumer would be exercising their freedom of choice if a more expensive product were pre-selected for them.258 In other words – could we be dealing with an aggressive commercial practice under Art. 8 UCPD? As I argued in 6.5.1, if our consumer is average, it may not be unreasonable to expect them to be able to withstand a bit of pressured selling and de-select undesired upsells.

Turning now to pop-ups (2) and prompts (3) urging users to upgrade their purchase, the authors of the Commission’s study on dark patterns259 and Leiser suggest that, if these appear repeatedly, their use could amount to ‘persistent and unwanted solicitations by telephone, fax, e-mail or other remote media [...]’, a practice prohibited by point 26 of Annex I UCPD.260 The Court was recently given the opportunity to elaborate on the requirements of this provision in StWL Städtische Werke Lauf.261 The case concerned a German energy company that commissioned a marketing campaign consisting of ads being served to the users of a free e-mail service. The advertisements appeared in-between ordinary e-mails in the users’ inboxes. The referring court wanted to know whether such advertising constitutes direct marketing via e-mail for the purposes of Art. 13(1) ePrivacy Directive (ePD)262 (which requires prior consent in this respect) and whether this activity is caught by the prohibition in point 26 of Annex I UCPD. The Court’s response to the first question was that ‘direct marketing’ refers to individual and direct commercial communication,263 and that inbox advertising such as that at issue constitutes direct marketing. In this respect, it did not matter that the e-mail service users who received the ad were targeted at random – they had to log into their e-mail accounts to see it, and were therefore individually and directly targeted.264 With regard to point 26 of Annex I UCPD, the Court’s ruling cast light on the meanings of the terms ‘solicitations by [...] e-mail’, ‘persistent’ and ‘unwanted’. The Court established that an advertising message addressing the user concerned directly and individually via private e-mail (which amounts to direct marketing communication within the meaning of the ePD) constitutes a solicitation.265 With regard to the meaning of ‘unwanted’, the Court equated it to the lack of consent.266 As Jablonowska points out, whether consent in this regard is to be understood with reference to the ePD is not entirely clear, given that the Court did not make an explicit link to the first part of the judgment (dealing with the requirements of Art. 13 ePD).267 Lastly, with regards to persistence, the users of the e-mail service in casu received three ads in the span of approximately one month, and the Court seems to strongly suggest to the referring court that the users were persistently solicited.268

The link the Court draws between the concept of direct marketing communications within the meaning of the ePD and the UCPD term ‘solicitations’ in this case makes me question whether pop-ups on a shopping website come within the scope of point 26. The protective regime of the ePD extends to individual (one-to-one), as opposed to mass (one-to-many) forms of communication,269 such as pop-ups, and, in my opinion, the judgment is signalling that ‘remote media’ for the purposes of point 26 should be read in the same way. Being contacted directly by a trader via e.g. e-mail and telephone is likely prohibited because the switching costs of changing one’s telephone number or e-mail address are high, or at least arguably higher than those related to closing a browser window and shopping elsewhere. There are therefore reasons to doubt that Pressured Selling pop-ups and prompts will be caught by point 26 of Annex I UCPD.

Recurring pop-ups and prompts could nevertheless be caught by Art. 8 UCPD. It should be recalled that alongside undue influence and coercion, Art. 8 also prohibits harassment. While harassment is not defined in the Directive, the examples of harassment listed in Annex I (point 26 and point 25, prohibiting ‘personal visits to the consumer’s home ignoring the consumer’s request to leave’) show that harassment is concerned with the invasion of an individual’s private space.270 As Sax et al. point out, nowadays traders no longer need to come to consumers’ houses as ‘they have a far more effective and arguably more private opportunity to access the consumer’ – via the screens of their personal devices.271 Not all direct contact between a trader and consumer will constitute harassment; it has been suggested that a finding of harassment is much more likely where the contact is accompanied by additional circumstances, which will be the case where the consumer has previously voiced their opposition (this implies that the consumer should express their opposition)272 and the practice persists.273 There is no opportunity for a consumer to voice their opposition in the context of a unidirectional channel of communication such as an online interface, which is exactly what makes the use of repeated pop-ups and prompts so intrusive. In terms of persistence, it should be recalled that the users in StWL Städtische Werke Lauf received three ads in the span of more or less one month. In the context of online shopping, exhortations to buy more may appear several times within the short span of a checkout process. Further, even a single pop-up can amount to harassment if it is hard to dismiss due to, for example, an almost-invisible ‘x’ button, or it cannot be dismissed and only disappears on its own after a certain period of time. While not persistent in terms of reoccurrence, these practices persist in duration.

It should be recalled that Art. 8 UCPD only prohibits aggression insofar as it can limit consumers’ freedom of choice or conduct in a way that influences their transactional decisions. Persistent nudging to buy more makes it more likely that a consumer will eventually give in to the trader’s insistence that they purchase more, in order to avoid being continuously nudged, or because they cannot dismiss the nudge easily. Extreme cases of consumers being nagged are therefore likely to be considered aggressive under the UCPD. That being said, it is not entirely clear when the line between annoyance and unlawful harassment is crossed. Some level of marketing communication between a trader and a consumer, including direct exhortations, is a given and is generally not perceived by (average) consumers as harassment that could influence their freedom of choice; accordingly, the UCPD only bans direct exhortations to children.274

6.7.2. Confirmshaming

Confirmshaming (Fig. 13) entails using language to steer users into making a choice that benefits the trader.275 This dark pattern relies on our susceptibility to information framing.276 On shopping websites, Confirmshaming can be used in the context of Pressure Selling pop-ups and prompts, and – as the NCC complaint against Amazon shows (section 6.6) – cancellation procedures.

Fig. 13: Confirmshaming on Amazon.com277

The UCPD directly addresses some of the more objectionable uses of language by traders. Point 31 of Annex I prohibits ‘explicitly informing a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy’. Making ‘inaccurate claim[s] concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product’ is prohibited as a misleading practice by virtue of point 12 (although it is not at all clear why the legislator deemed this practice misleading rather than aggressive like other pressure-selling techniques). Further, Art. 9 UCPD lists ‘the use of threatening or abusive language or behaviour’278 and ‘any threat to take any action that cannot legally be taken’ as relevant factors to be taken into account when assessing whether a practice is aggressive within the meaning of Art. 8.279 Confirmshaming does not typically manifest as outright verbal abuse; it relies instead on more subtle verbal cues, which is precisely why it might just work to frame a decision as beneficial to the consumer, but also why it may pose significant difficulties in terms of its assessment under the UCPD. In the words of Hans Micklitz, ‘[t]he touchstone for the autonomy concept of the consumer is the assessment of emotional advertising’.280 Being based on the principle of proportionality, the Directive only curtails extreme forms of distortion of consumers’ freedom of action, leaving significant room for traders to be creative in the way they shape their marketing messages.281 Accordingly, in the context of misleading practices, Art. 5(3) UCPD lends legitimacy to puffery (subjective or exaggerated statements about the qualities of a particular product that are not meant to be taken literally), which, according to the Commission, may ‘deceive only a very credulous, naive or cursory consumer’.282 Average (and, when it comes to puffery, also vulnerable) consumers are expected to be able to see through traders’ ingenious linguistic manoeuvres. Therefore, while the Commission suggests that the use of Confirmshaming could amount to an aggressive commercial practice by way of undue influence in its 2021 UCPD Guidance,283 it is much more likely, in my opinion, that the Court will take the position that the economic autonomy of the average consumer should not be distorted by subtle emotional appeals.284 That being said, as illustrated by the CPC Network enforcement action against Amazon, Confirmshaming may be used in the context of making the unsubscribing process disproportionately difficult for consumers, and it may be therefore caught by Art. 8 UCPD when it is used in combination with other dark patterns to impose ‘onerous or disproportionate non-contractual barriers’ to frustrate consumers’ right to termination.

6.8. The behavioural exploitation of consumers as an unfair commercial practice

As seen above, the majority of the dark patterns found in the Mathur et al. study exploit cognitive biases. This prompts the question of whether the use of dark patterns that rely on consumers’ behavioural weaknesses for their effectiveness is permitted under the UCPD. Arts. 8 and 5 UCPD may be used to tackle the use of subtle forms of influence that do not operate on an informational dimension, such as through the exploitation of cognitive biases.

Turning first to Art. 8, the Directive does not provide much guidance as to how aggressive (and therefore unfair) practices should be distinguished from merely persuasive ones; as Howells puts it, ‘there is a fine line between legitimate hard selling and aggressive selling’.285 While this gap could be filled by interpreting the provisions in light of the policy rationale for extending the coverage of the Directive to aggressive commercial practices, neither the Directive nor the travaux preparatoires nor the recitals provide much detail as to the core ideas underpinning the concept of aggressive practices and how that concept is to be fleshed out.286 Further, the Directive is also not very informative when it comes to distinguishing between the three forms of aggression it is concerned with: undue influence, coercion and harassment. Only a definition of undue influence is provided in Art. 2(j). According to this provision, ‘undue influence’ entails that a trader exploits ‘a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision’. Of the alternatives of Art. 8 UCPD, undue influence seems the most suitable to assess the aggressiveness of subtle forms of influence on consumer behaviour, such as through the exploitation of cognitive biases. Art. 9 UCPD lists factors that have to be taken into account in determining whether undue influence was exercised. Of the listed factors, the ‘exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgment, of which the trader is aware’ (Art. 9(c) UCPD) could, prima facie, be called into question by dark patterns. Leiser and Caruana state that ‘“Confirm Shaming” or similar types of dark patterns that impose pressure on users’ could be regulated by Arts. 8 and 9 UCPD with reference to this factor.287 However, the exploitation of specific misfortunes seems to refer to an individual consumer’s vulnerabilities.288 Howells exemplifies the sort of practices that Art. 9(c) may be referring to as ‘a lawyer offering his professional services at the scene of a car crash’.289 Accordingly, this provision is frequently brought up in scholarly contributions discussing the unfairness of personalised commercial practices.290

In its recent judgment in Orange Polska,291 the Court had the opportunity to, for the first time, clarify the requirements to qualify commercial practices as aggressive through the exercise of undue influence. The case concerned the practice of requiring that a consumer decide whether to conclude a telecommunication contract in the presence of a courier. According to the Court, undue influence requires additional practices that may pressure the consumer,292 for example the trader/their representative insisting on the consumer signing the contract.293 ‘Insistence’ is further specified in paragraph 49 of the judgment:

By way of example, the announcement that any delay in signing the contract or amendment would mean that the subsequent conclusion thereof would be possible only under less favourable conditions, or the fact that the consumer would risk having to pay contractual penalties or, in the event of the contract being amended, would risk the trader suspending the service, may fall within that category. The fact of the courier informing the consumer that, if he refuses to sign or delays in signing the contract or amendment that has been delivered to him, he could receive an unfavourable assessment from his employer could also fall within that same category.

Such measures will constitute an aggressive practice if they are ‘liable to make that consumer feel uncomfortable and thus to confuse his thinking in relation to the transaction decision to be taken’.294 The Court’s interpretation of Art. 8 in Orange Polska is lacking in several respects. First, the Court did not clarify what constitutes a position of power, as Helberger et al. note.295 Second, as Kaprou points out, the Court did not engage with the average consumer test in the judgment; therefore, it is still unclear what amount of pressure the average consumer is expected to withstand.296 Third, the Court did not specify whether the consumer needs to be aware of the pressure.297

Academic literature suggests that the ability to acquire knowledge of the cognitive biases consumers are vulnerable to may constitute a position of power.298 If that were the case, a finding of undue influence still requires an element of pressure, or, as shown in Orange Polska, insistence that may pressure a consumer. Prior scholarly contributions suggest that the pressure must be overt, i.e. the consumer must be aware of the pressure.299 That will be the case for at least some dark patterns exploiting cognitive biases, such as Scarcity and Urgency dark patterns, which use language and visual elements to indicate that an offer may end soon or that the product may run out of stock. However, is the use of these practices liable to make the average consumer feel uncomfortable? The difficulties that the average consumer benchmark poses for curtailing the use of dark patterns discussed below in relation to Art. 5 UCPD are equally relevant for the assessment under Art. 8.

The Commission has suggested in its 2021 UCPD Guidance that the use of dark patterns may run contrary to the requirements of professional diligence, and their use could thus breach Art. 5 UCPD. More specifically, the Commission stated that ‘[a]s a general principle under the requirements of professional diligence in Article 5 UCPD, traders should take appropriate measures to ensure that the design of their interface does not distort the transactional decisions of consumers’.300 This imperative still does not bring us any closer to establishing when user interface design will and will not distort consumers’ transactional decisions. At a more general level, prior scholarship has argued that the intentional targeting of cognitive biases or emotional weaknesses should, in principle, be deemed to violate professional diligence.301 Adding more evidential hurdles to a regime that is plagued by under-enforcement may not be the best idea, however.302 Further, even if the use of dark patterns targeting cognitive biases were to fall short of the requirements of professional diligence, Art. 5(2) also requires a material distortion, which is to be assessed with reference to the average consumer standard. As Duivenvoorde points out, in the UCPD Guidance, the Commission also tries to soften the edges of the benchmark in various ways.303 The Commission states that the average consumer is not ‘somebody who needs only a low level of protection because they are always in a position to acquire available information and act wisely on it’.304 The standard ought instead to be interpreted ‘having in mind Article 114 of the Treaty, which provides for a high level of consumer protection’.305 In relation to misleading practices, the Commission instructs national courts and enforcement authorities to take into account ‘the most recent findings on behavioural economics’ in their assessments.306 Cohen argues, against this background, that the Commission creates, through its UCPD Guidance, ‘ample room’ for national authorities to consider cognitive biases and limitations in characterising the average consumer.307

Some enforcement authorities have heeded the Commission’s call. Following the CPC Network’s coordinated action against Booking.com (discussed in sections 6.2–6.4), which centred on the company’s potentially misleading practices, the Hungarian GVH imposed a record-high fine on the company for adopting ‘pressure selling tactics at each stage of the accommodation search and booking process’.308 The ‘pressure selling tactics’ in question were ‘the use of attention grabbing (striking in colour, font size or other characteristic) information’ about product availability (Scarcity dark patterns) and popularity (Activity Notifications).309 In other words, the GVH is taking issue with seemingly deliberate information overload. This reveals another potential shortcoming in a regime that has sought to mostly protect (average) consumers through information remedies: a long-lasting commitment to increasing the amount of information disclosed to consumers may lead to disclosures being weaponised, a risk that Ben-Shahar and Schneider warned us about in 2011.310 As Straetmans points out, given that the UCPD is rooted in the European information model, it is not convincing to argue that the disclosure of additional information to consumers may be unfair.311 I return to this point in section 6.9. Returning to GVH’s decision, the authority concluded that the pervasive use of these dark patterns is likely to exert psychological pressure in the form of ‘fear of missing out’ and disrupt the consumer decision-making process, amounting to an aggressive commercial practice.312 The authority refers to behavioural evidence on the scarcity bias and bandwagon effect in its decision.313 It is difficult to reconcile the stance taken by the Commission and decisions such as that of the GVH with the Court’s vision of the average consumer, which, as Duivenvoorde notes, appears to place – ‘seemingly deliberately – high expectations as to the behaviour of the consumer’.314 Howells et al. similarly note that ‘[i]t is doubtful whether empirical testing of the characteristics of an average consumer would conform to this norm’.315

Admittedly, some recent cases may be read as the Court softening its stance on the characteristics of the average consumer. In Purely Creative, which was concerned with the Annex I prohibition of falsely claiming that a consumer has won a prize (point 31), the Court held that:

[...] the reference to a prize seeks to exploit the psychological effect [emphasis added] created in the mind of the consumer by the perspective of having won something and to cause him to take a decision which is not always rational and which he would not have taken otherwise.316

Purely Creative has been read by some scholars as a nod from the Court to studies attesting to consumers’ bounded rationality.317 Purely Creative was, however, concerned with the interpretation of a practice that is in all circumstances prohibited, rather than one of the general prohibitions of the UCPD. It is therefore questionable whether we may extrapolate broader implications from this ruling. Further, as Stuyck points out, the Court seems to be concerned with the protection of the targeted average consumer in this case;318 as we saw in Chapter 5,319 the level of protection afforded by the UCPD can be modulated where a practice is addressed to specific (groups) of consumers.

Another decision that was similarly seen as a window of opportunity (for a more realistic consumer image) by some scholars320 is that in Teekanne, where the Court held that in some situations a correct and complete list of ingredients may not be capable of correcting a consumer’s erroneous or misleading impressions stemming from other items comprising its labelling.321 Teekanne was not, however, concerned with the interpretation of the UCPD, but rather of the now-repealed Food Labelling Directive.322 Insofar as there may be a more realistic consumer image in food marketing law, this may be owed to the fact that, as Purnhagen puts it, ‘[f]ood marketing law is geared much more to the realisation of consumer rights compared with general marketing law’,323 due to its concern with, amongst others, consumers’ health.

Even if we were able to extrapolate implications for the consumer image that guides the application of the general prohibitions of the UCPD from the above-mentioned judgments, two decisions are arguably too few to signal a systematic shift in the Court’s expectations of average consumers;324 and where the average consumer is the applicable benchmark, it is hard to make a case for unfairness in the case of subtle forms of behavioural exploitation, as Hacker also points out.325 I discuss what this means for the effectiveness of our current legal framework in the next section.

6.9. Synthesis

This section summarises the results of the analysis in the previous subsections (6.9.1) and discusses what they mean for the effectiveness of our current system of consumer protection against the use of Shopping dark patterns (6.9.2).

6.9.1. Summary of results

Some trends can be extracted from the analysis in this chapter.

The current legal framework seems to be dealing quite well with misleading practices that are outright deceptive;326 false information is a concept that appears to be well defined enough to be able to capture deception, even where it is produced through technical means.

When it comes to omissions of information,327 the legal framework also appears to be doing a good job at tackling cases of pure omissions, i.e. complete failure to provide relevant information. Cases of information obfuscation, where information is made available but is presented in a way that makes it more likely that a consumer will not notice it (in an untimely way, in a different place or page on the website, or visually manipulated), are trickier. The CRD does establish some information quality requirements, yet it clarifies neither what they entail nor what we might expect from their interaction. Further, the information quality requirements that are specific to contracts concluded online (Art. 8(2)) are only applicable at the order confirmation stage. The UCPD, which applies from the advertising stage, does also take issue with information presentation, but ultimately provides for a case-by-case assessment, based on whether the presentation may influence the decision of the average consumer. Where this is the case, the result is not just unclarity, but also the risk of a finding of fairness, as the average consumer may be expected to put at least some effort into finding information on a trader’s website. Further, by not engaging with information presentation to a great extent, the legal framework also misses out on an opportunity to make sure that not-so-average consumers actually notice information, and do so at the right time.

Dark patterns may operate beyond an informational dimension: they may also supersede consumer choice,328 as well as add practical barriers to consumers undertaking desired actions,329 and attempt to pressure them into a particular course of action through language or nagging.330 Barring cases of clear prohibitions,331 the application of the average consumer test in this regard means that extreme cases may be caught by the UCPD’s prohibition of aggressive commercial practices. However, given that the average consumer is generally expected to withstand some commercial pressure, and that the case law on aggressiveness under the UCPD is still scarce, this leaves us not only with uncertainty as to where to draw the line between acceptable and unacceptable pressure, but also with the possible conclusion that in some instances, the pressure will be deemed acceptable. Moreover, the linking of findings of aggressiveness to (in)adequate provision of information (as in Wind Tre) leads to further uncertainty. If we cannot establish with certainty whether information on, say, a subscription has been presented adequately and clearly, we also cannot establish whether a consumer has been charged for a subscription without their express consent.

Lastly, given dark patterns’ general propensity to rely on cognitive biases and emotions for their effectiveness, we could attempt to frame them as either aggressive or contrary to professional diligence under the UCPD, but we may also want to ask ourselves whether the average consumer test is the appropriate one to filter them through, as it leaves the door (wide) open for the Court to restate its case law on the rationality of average consumers, with a resultant gap in consumer protection.

Let us now look at what these conclusions mean for the effectiveness of the current legal framework.

6.9.2. The effectiveness of the current legal framework

In writing about the potential of the current legal framework to address the proliferation of dark patterns in digital markets, many consumer law scholars stress that the flexibility of the UCPD in particular, which stems from its technology neutrality, allows its coverage to be extended to dark patterns. Kaprou writes that ‘[...] it is possible to apply the general definitions of unfair practices to them in an adequate manner to protect consumers today’.332 Leiser and Caruana state that ‘consumer protection legislation can stand on its own as a powerful enforcer against dark patterns’ and that ‘[p]ossibly the most challenging aspect of consumer protection law is to remedy how poorly it has been enforced to date’.333 Leiser and Santos put forward that ‘all dark patterns involved in B2C transactions are covered by the UCPD’.334 In a solo publication, Leiser even proposes a new taxonomy of dark patterns that is rooted in the distinction the UCPD draws between aggressive and misleading commercial practices.335 Trzaskowski’s take is that ‘the UCPD may be interpreted to include such practices’.336 This perspective seems to be shared by the authors of the Commission’s behavioural study on dark patterns, who report that ‘the UCPD appears sufficiently broad and flexible to cover and sanction many of the digital unfair commercial practices that are common today and should be properly enforced’.337

The position taken in these contributions is not wrong, but it may be incomplete. The fact that we regulate dark patterns does not mean that we regulate them well; in other words, applicability and effectiveness are two different questions. Looking at dark patterns as a socio-technical artefact that could lead to regulatory disconnection may offer a more fruitful diagnosis of how our current legal framework may go wrong in providing adequate protection to consumers against traders’ use of dark patterns. As Bennett Moses observes, ‘Brownsword’s concept of regulatory disconnection is useful in that it allows one to observe disconnection even where there is no “legal” disconnection’.338 Are we facing regulatory disconnection in EU consumer law insofar as dark patterns are concerned?

As the previous sections illustrate, applying the UCPD to practices that exploit consumers’ behavioural biases may not always lead to a conclusion of unfairness. This seems to point towards a normative disconnection.339 The normative disconnection is also discernible in the fact that neither the UCPD nor CRD engage with information presentation requirements in a way that would make key information unmissable by not-so-average consumers; it is also discernible in the difficulty of questioning the weaponisation of disclosures in a regime that assumes that more information is always better. The UCPD and the CRD were designed to protect the average, rational consumer, who is able to withstand some commercial pressure, and take information remedies and run with them. As De Vries aptly sums up, ‘[t]he basic notion of consumer in EU law is that the consumer is considered an individual who can, if provided with the necessary information, make his own choices and defend his own interests’.340 In the previous chapter,341 we saw that achieving the EU internal market required the instrumentalisation of consumers into confident market actors that are willing to shop cross-border, including online. Now that the digital internal market is alive and well, we may want to pay attention to the harms consumers experience in it, including those arising from the use of dark patterns for the behavioural exploitation of consumers.342 Arguably, behavioural exploitation is nothing new, and scholars have been criticising the consumer image in EU consumer law at least since the early days of the UCPD,343 but the current scale of behavioural exploitation is unprecedented, and what may have seemed a minor problem when the UCPD was adopted almost 20 years ago could legitimately worry us more today. It could be high time to redraw the boundaries of persuasion in online environments.

At the same time, as this chapter shows, while the UCPD and the CRD together may be doing a better job at regulating dark patterns that disrupt the information flow to consumers and cases of extreme commercial pressure, there are still high rates of non-compliance in digital markets. Persistent and widespread non-compliance could point to a descriptive disconnection that has been brought on by a relatively technologically neutral legal framework. What can happen when the law does not engage with the design of digital products is that some traders may choose to, for example, disclose mandatory charges at the end of the purchasing process (Hidden Costs), devise long and winding cancellation processes (Hard to Cancel), and try to obscure crucial subscription terms – the conversion of free trials into subscriptions and auto-renewal clauses – in a variety of ways (Hidden Subscription). For others, regulation may be adding another layer of complexity to the process of user interface design;344 and they may struggle with having to interpret legal requirements and translate them into code, and may thus draw inspiration from the formers’ practices, implement profitable accidents that are not compliant, or purchase non-compliant and possibly non-modifiable design elements from third parties. Regarding this final aspect, Mathur et al. found that third-party entities widely enable dark patterns on e-commerce websites – they discovered 22 entities embedded on ~1066 of the ~11,000 websites they analysed that provided marketing services that enabled dark patterns.345 As Lodder points out, the overlapping regulation of the same information items by various instruments (think about how the UCPD, CRD and PID all regulate price information) likely exacerbates the problem of unintentional non-compliance.346 Lastly, if we combine technology-neutral laws with under-enforcement, we may turn even regulatees who are otherwise willing to comply into outright non-compliers who do not fear the bite of the law.

While it is possible to argue that addressing descriptive disconnection is merely a question of the timing of legal certainty (whether it is provided ex ante by policymakers) or ex post by decision-makers (enforcement authorities and courts),347 20 years after the adoption of the UCPD, these questions remain unanswered at EU level. There is remarkably little CJEU case law that deals with user interface design. It is also unlikely that the Court would provide clear(er) interpretations on what compliance means in digital environments even if it were faced with opportunities (preliminary references) to do so. While it is not the Court’s job to apply the UCPD (or CRD) to cases before national courts, it has the final say in the interpretation of EU legal instruments.348 As pointed out by several scholars, when it comes to the interpretation of the UCPD, the Court adopts a rather laissez-faire approach in that it shies away from providing detailed interpretations to national courts in terms of application.349 With regard to the CRD, the Court has also dropped the interpretative ball into the hands of national courts in Fuhrmann-2, for example. We may also ask ourselves whether the rather slow and unpredictable preliminary ruling procedure, which is dependent on national courts referring suitable test cases, is the best site to provide certainty with regard to the continuously evolving heterogeneity that can be observed even with regard to individual dark patterns.350 It took the Court seven years, from the CRD’s becoming applicable in 2014 to the 2022 Tiketa judgment, to reach the unsatisfying conclusion that most information elements mandated by Art. 6(1) CRD can be disclosed in the trader’s fine print. Perhaps we may want to eliminate the scope for heterogeneity in terms of some aspects of user interface design entirely. We will explore this option in Chapter 7.

The Commission tries to address the interpretative gap between consumer law instruments and market practices observed in the wild by issuing guidance documents; yet, as the previous sub-section shows, the new (2021) UCPD Guidance also leaves important questions unanswered. Further, Commission guidance documents are soft law instruments – they are binding on neither traders nor national authorities. It is also not clear whether the interpretations the Commission offers in its guidance documents are mere policymaking or the outcome of the application of accepted legal methodology, as Busch351 and Trzaskowski point out.352 Trzaskowski also warns that the fact that guidance documents are issued by the Commission may give them an official appearance, and that, in the absence of guidance from the Court, traders and national authorities may defer to the Commission’s interpretation.353 This may put them in a precarious situation, as the Court may have different ideas. This is something that happened in relation to the Commission’s stance that disclosing the information mandated by Art. 6(1) CRD could not be done as part of the general terms and conditions in the 2021 CRD Guidance.354 Just two months after the Guidance was published, the Court ruled in Tiketa that traders may disclose information in the general terms and conditions.355 This only applies to the items of information that are not subject to the more stringent (yet equally vague) requirements of Art. 8(2) CRD, but then the Commission did maintain that none of the disclosure duties could be satisfied by sandwiching the information in T&Cs. Deference to the Commission’s understanding of what is mandated by technologically neutral provisions in digital markets could also translate into hesitation to refer to the CJEU the sort of preliminary questions that could shine more light on what compliance with these instruments means; as Trzaskowski explains, there is a risk that soft law will become a ‘self-fulfilling prophecy’.356

The discussion so far has centred on the EU level. A potential blind spot in this regard may be that at national level, things are clearer. Some national enforcement authorities, like the ACM in the Netherlands, have taken matters into their own hands. The ACM’s guidelines on the protection of the online consumer indicate how the ACM interprets the Dutch provisions implementing the UCPD in relation to online commercial practices, including dark patterns.357 Overall, however, the suboptimal levels of enforcement in digital markets, which took centre stage in the previous Fitness Check of consumer law358 and remain a matter of concern for the Commission in the context of the ongoing review of the CPC Regulation,359 seem to suggest that struggles remain at national level(s). Recall from Chapter 4 that vague rules may also make enforcement authorities hesitant to act.360 We may be dealing with a vicious circle of non-compliance, in which technology-neutral rules lead to both less compliance and less enforcement, which in turn may lead to even less compliance.

A diagnosis of a regulatory disconnection may be less worrying if we have the right tools at hand to address this fast and adequately. The lack of instruments to ensure the maintenance of regulatory connection in EU consumer law in the long run is alarming. Neither the CRD nor the UCPD foresee regular review, nor delegate this, which means they can only be adapted to account for new challenges in shifting socio-technical landscapes of consumer harm through the ordinary legislative procedure.361 This may have long(er)-term consequences for the effectiveness of our regulatory framework, as regulatory disconnect is not a one-off phenomenon; it will occur again and again, and it is crucial for us to have mechanisms in place to ride this wave and the next one, and the one after that.

To sum up, my analysis leads me to conclude that the effectiveness of our current substantive rules is on thin ice. Let us go on to explore policy solutions in the next chapter.