Under the Spotlight of the Advertising Board: Dark Commercial Patterns

    At the meeting dated 08.08.2023 and numbered 336 held by the Advertising Board ("Board") rendered various important decisions regarding Dark Commercial Patterns, which have recently been widely discussed in the field of digital advertising.

    With the amendment dated 01.02.2022, Regulation on Commercial Advertising and Unfair Commercial Practices, “using methods that adversely affect consumers will to make a decision or choice by using means such as guiding interface designs, options or expressions regarding a good or service on the internet; or methods aimed at leading to changes, in favor of the seller or provider, in the decision that consumers would normally make under normal circumstances” was considered among the sample practices accepted as unfair commercial practices. Upon this amendment, we observe that dark commercial practices are on the Board's agenda and the Board has directly ruled against such practices currently. Accordingly, with the announcement published by the Board on 05.09.2023, it was concluded that the commercial practices referred to as Dark Commercial Designs have emerged in ways that significantly disrupt the economic behavior of consumers.

    In this article, we have compiled sample decisions regarding some of the practices that were reviewed by the Board and sanctioned on the grounds of dark commercial practices.

    1- Decision of “Turkcell Superbox” No. 2023/1216

    During the examinations, it was observed that regarding the Superbox service, Turkcell used applications called "banners", which were designed to attract the attention of consumers as boxes or windows on different websites. Those advertisements and promotions included pricing information of TRY 299 for the 150 GB portable internet service at 4.5G speed. However, as a result of the Board's examination, it was determined that, in addition to this price, consumers would also be subject to other taxes and financial obligations.

    Thus, Turkcell's Superbox advertisements, which only provided an information regarding fixed price of TRY 299 without any details or exceptions, created a perception among consumers that no further payment would be made and that this amount was all-inclusive as a fixed service fee. As a result of this assessment, the Board decided that Turkcell's advertisements did not accurately reflect the reality and were misleading and thus violated the relevant legislation, and imposed a suspension the advertisements.

    2- Decision of “Markevent” No. 2023/6011

    In the examinations conducted by the Board, it has been observed that the firm sells tickets for matches and other organizations in the reviewed website of the firm. However, those tickets have been offered to the consumers at prices considerably higher than the normal sales price. Furthermore, it was also determined that some of the tickets offered for sale on the aforementioned website were for events that did not exist in reality.

    Especially regarding the sale of tickets for non-existent organizations, the Board stated that it is an unfair commercial practice for the seller to continue to offer a good or service without informing the consumer despite the fact that the seller is aware of the fact that it cannot be provided within a reasonable period of time. In addition, it has been evaluated that the advertiser adversely influences the consumers' will to make economic decisions and choices with the notifications provided to the consumers on the ticket purchase page.

    As a result of these assessments, the Board decided to impose an administrative fine of TRY 347.128,00 and suspension of unfair commercial practices.

    3- Decision of “Blutv” No. 2023/230

    Blutv, a digital platform that broadcasts visual content such as movies and TV series, offers consumers different subscription plans with various pricing options. In this regard, when consumers visit the relevant payment page, it is noticed that the annual subscription option with the statement "If you choose an annual subscription, 39,90 TL instead of 69,90 TL per month, 43% discount!" is already selected.

    The Board assessed that this practice manipulated the economic behavior of consumers. The Board stated that offering the annual subscription option as selected on the payment page means that consumers are forced to become a party to a contract to which they would otherwise not be a party and to subscribe to the platform for a longer period of time. Considering that this is a practice that negatively affects consumers' will to make a decision or choice, the Board decided that the mentioned practice is in breach of the legislation and decided to suspension of advertisements.

    4- Decision of “Microsoft” No. 2023/233

    In the reviewed Microsoft advertisements entitled "Unlocked Now: Take Free Upgrade to Windows 11", it was observed that the "Get" and "Plan" options were clearly presented to consumers on the screen, but the other option, "Keep Windows 10", was presented in a way that was more difficult to distinguish than the other options.

    In the assessment made by the Board, it was stated that this practice made it difficult for consumers to continue using their current operating system without upgrading it. It was revealed that the advertiser made it more difficult to use the current system in the perception of the average consumer, and that the advertiser negatively affected the consumers' will to make a decision or choice by making them think that they had to upgrade their operating system to Windows 11 in order to use their computers. Based on these assessments, the Board decided to impose a suspension on the aforementioned advertisements on Microsoft.

    The decisions cited above indicate that the Board sanctions commercial advertisements and practices that are likely to mislead, deceive, manipulate consumers, and restrict their freedom of choice, in other words, dark commercial designs, by declaring them to be in breach of the legislation. In order to prohibit these practices and to sanction companies, it is not necessary for consumers to be damaged, and considering the average consumer perception, it is seen that even the possibility of misleading and manipulating the consumer is sufficient for the said commercial practices to be deemed unfair. Considering the growing scope of digital advertising, it is expected that the Board will continue to focus on the issue of dark patterns and will continue to make decisions in favor of consumers without tolerating such practices.

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