Dark (Commercial) Patterns are on Advertising Board’s Agenda

Digitalisation and technological developments have been creating significant legal problems recently, specifically for consumers. Since consumers are in a relatively weaker position in terms of knowledge and experience compared to those who engage in commercial practices, it is highly significant that they are legally protected. Otherwise, many unfavourable situations may arise, such as the deterioration of the economic behaviour of the consumer who is under the influence of unfair commercial practices, and the influence of their free will decision-making.

Accordingly, unfair commercial practices are regulated in detail by the Law on Consumer Protection and the Regulation on Commercial Advertising and Unfair Commercial Practices (Regulation). Pursuant to the Regulation, a commercial practice directed to the consumer is considered unfair in case it does not comply with the requirements of professional care and significantly disrupts or is likely to disrupt the economic behaviour of the average consumer regarding a good or service.

Recent developments in digital markets have led to an increase in unfair commercial practices referred to as “Dark (Commercial) Patterns” and in Türkiye as “Dark (Commercial) Designs”. As a matter of fact, these practices, which have a significant impact on the economic behaviour of consumers, have also come under the radar of the Advertising Board and constituted the main focus of this month’s meeting. Advertising Board, in its announcement on the subject, referred to the relevant provisions in the Regulation and shared with the public that dark designs that affect consumers’ will to choose and aim to direct consumers to certain preferences will be monitored more closely.

Pursuant to Article 22 of Annex-A of the Regulation, which is also mentioned in the Advertising Board’s announcement, dark designs are defined as “methods that adversely affect the will of consumers to make a decision or choice by means of tools such as guiding interface designs, options or expressions regarding a good or service on the internet, or that aim to cause changes in favour of the seller or provider in the decision they would make under normal conditions”. Dark designs can appear in many ways such as presenting pre-selected options to consumers, making options difficult to direct consumers to certain preferences, using misleading headlines, hiding advantageous situations, and highlighting disadvantageous situations.

The decisions of the Advertising Board on the subject have not been published on the website yet. However, this step towards dark designs is an important development specifically for the field of legal design.

You can reach the Ministry of Trade’s announcement on the subject here (only available in Turkish).