Poland's Office of Competition and Consumer Protection investigates 'dark patterns'

Recently, one of the proceedings pending before the Office of Competition and Consumer Protection (UOKiK) – a central government administration body – has been in the public eye. The case concerned one of the most popular e-commerce platforms in Poland, enabling the sale and purchase of products and services. 

The case follows UOKiK receiving reports from website users of the use of unfair practices – including "dark patterns" – for which entrepreneurs can be fined up to 10% of their turnover obtained in the financial year preceding the year in which the penalty is imposed for violating the collective interests of consumers.

No unambiguous information

The UOKiK president charged the e-commerce company with the misleading sorting of offers. When choosing the "from the cheapest" option, the prices did not include the "service maintenance" fee, what may affect the selection of a less profitable offer. An example of this was illustrated in UOKiK's announcement: "A men's shirt for PLN 39 with a service fee of PLN 3.67 ranks higher and seems more attractive in terms of price than a PLN 40 shirt with no additional fees". The service fee was visible only after clicking on the offer. 

UOKIK stated: "Reliable sorting of products must be based on comparable criteria. Searching for offers 'from the cheapest' allows you to find the most advantageous price, without having to verify each offer. This is especially important when we are looking for popular products, of which there are many on the website. Sorting by price should take into account all the components which make up the final price. Omitting a component may be misleading to the user."

Dark patterns

According to UOKiK's president, this is an example of a dark pattern, that is, a practice that uses knowledge about consumer behaviour on the internet to influence purchasing decisions in a dishonest way. The buyers on the website also complained about irregularities concerning the "protection package", which was indicated as an additional protection. This consisted of reporting the receipt of an item that was different from the one ordered or of an empty package. Notification could be submitted within 24 hours from the receipt of the parcel. In these situations, the owner of the website had the option to withhold the money from the seller. 

Surprisingly, the regulations turned out to be more favourable for the seller. UOKiK indicated in its announcement an example in which a user who received a parcel with damaged electronic equipment could be denied the use of the protection package. Therefore, the service offered by the website could mean an illusory protection of consumers that made purchases using the website.

The e-commerce platform issued a statement in which it emphasized that it provides all answers to the office and cooperates with it on a regular basis as part of the proceedings.

Dark patterns are used by the websites to achieve a specific goal and are designed to manipulate the recipient to perform "conversion" in a planned manner; the user, therefore, is misled. Examples of dark patterns include hiding information about additional costs, which can be placed in a less visible place or written in colour that almost blends with the background, and vaguely structured messages, such as, after clicking cancel, consent is still given (the so-called apparent right of choice is indicated).

UOKiK's internet action

These are not the first actions of the president of UOKiK with regard to websites. UOKiK has already checked how the consumer is informed about fees and functionalities of online platforms. The consumer has the right to expect from the entrepreneur that the website has been designed in an honest way.

The price should be known to the consumer in advance, and it should have an easily recognisable purchase path without hidden and additional charges. Earlier this year, a Lithuanian platform enabling users to sell second-hand clothes and other items was punished by the decision of the president of UOKiK, who decided to impose fines in total of more than PLN 5 million on the commercial portal. In the opinion of UOKiK, the activities of the companies exposed consumers to unfavourable decisions as well as to the loss of time and money. The penalty was imposed in connection with the proceedings initiated in September 2021.

Recently, UOKiK has taken more actions regarding consumer protection, so that their interests on the Internet are properly secured.

Osborne Clarke comment

In Poland, UOKiK has been very active recently. This is caused, for example, by changes in legislation. Many entrepreneurs are concerned about the obligations resulting from the implementation of the provisions of the Omnibus Directive – for example, those relating to the presentation of promotional prices or moderating comments. The overwhelming number of consumers pay attention to product reviews on online store websites. 

UOKiK reported that it is conducting proceedings regarding entities that publish unreliable opinions on request. E-commerce companies that wish to present customer feedback online should take proportionate and reasonable steps to review content posted. These activities are intended to ensure that comments actually come from customers who have used the product being assessed.

In addition, the president of the UOKiK has also tried to reform the advertising market in social media, with the goal of eliminating negative practices that harm consumers. His recommendations regarding the labelling of advertising content by influencers on social media are now available on the UOKiK website. 

Examples of violations of consumer interests – referred to as unfair market practices – are statements encouraging the purchase of goods or services that give the impression of neutral information. The responsibility for the correct labelling of advertising content rests with the influencers, advertising agencies and advertisers. There is a financial penalty for the lack of proper marking of commercial content. UOKiK, consistently following influencers, will probably look at the placement of advertising materials by other entrepreneurs.

There is no doubt that entrepreneurs who want to take advantage of the rapid development of the e-commerce market should pay attention, among other things, to issues related to consumer law.