Dark patterns and sustainability remain a target for Poland's consumer protection authority

The Polish Office of Competition and Consumer Protection (OCCP) is continuing its drive to engage actively in consumer protection law enforcement. In January, the president of the OCCP announced that he will examine how the market has adapted to new regulations resulting from implementation of the Omnibus directive. The competition and consumer watchdog, with the help of the Polish Trade Inspection, plans to carry out inspections in physical stores, which have already been preceded by motioning for explanations from about 40 entrepreneurs from the e-commerce industry. The president of the OCCP also intends to carry out inspections in retail networks.

Earlier this month, the president of the OCCP initiated proceedings against a major international platform. The charges concern misleading as to the time of concluding a sales agreement, products availability, deadlines for deliveries and consumers' entitlements. These practices have the potential to violate the collective interests of consumers, for which there is a high penalty. The company is at risk of a fine of up to 10% of its turnover.

Earlier this month, the president of the OCCP initiated proceedings against a major international platform. The charges concern misleading as to the time of concluding a sales agreement, products availability, deadlines for deliveries and consumers' entitlements. These practices have the potential to violate the collective interests of consumers, for which there is a high penalty. The company is at risk of a fine of up to 10% of its turnover.

Offer not sale

According to the OCCP findings, placing an order and receiving its confirmation on the given website is not equivalent to concluding an agreement of sale – it only constitutes an offer by the consumer to purchase the product. The platform considers that it is not obliged to deliver the goods and can decide to complete or cancel the transaction as only the information about the actual shipment is binding, and this, according to the company, is the actual moment of purchase of the goods. 

The above provision can be found in the terms and conditions of sale and at the final stage of the purchasing process on the platform in grey font on a white background at the very bottom of the page, which may require scrolling the screen. At the same time, brightly coloured "buy now" (on the product page) or "continue to complete purchase" (after adding to the shopping cart) buttons easily catches consumers' attention. 

In the opinion of the president of the OCCP, such expressions may suggest that, when ordering a product, a purchase is made and the transaction occurs immediately upon payment for the goods. Given the deceptive design of those communications, they can be regarded as an example of the use of dark patterns.

Dark patterns

Dark patterns are defined as practices that use knowledge about consumers' online behaviour to influence their purchasing decisions in an unfair way. These include exposing options that are more favourable for traders in the website architecture and hiding those that the consumer would likely choose if presented in the same way. In the example of the international e-commerce platform probed by the OCCP, the dark pattern were the choice of font, colours and contrast on the website. 

However, there are a lot more types of dark patterns that can be distinguished, for example: questions that trick the consumer into giving an answer that they didn't intend; the so-called "sneak into basket", where the site sneaks an additional item into the shopping basket; and trapping users with "roach motels" that keep them subscribed against their will or price comparison prevention solutions. 

Dark patterns have been already investigated by the European Commission. In 2022, this led to the publication of the "Behavioural study on unfair commercial practices in the digital environment: dark patterns and manipulative personalisation" report. This document showed that 97% of the most popular websites and apps used by EU consumers deployed at least one dark pattern. Recently, the Commission, with the help of national consumer protection authorities, released the results of a screening of retail websites, which covered 399 online shops. The investigation showed that 148 sites contained at least one of the following dark patterns: fake countdown timers; web interfaces designed to lead consumers to purchases, subscriptions or other choices; and hidden information. The "sweep" also included the apps of 102 of the websites screened, 27 of which also deployed at least one of the above-mentioned categories of dark patterns.

Osborne Clarke comment

In Poland, the president of the OCCP has already charged one of the retail platforms for misleading offer sorting. When choosing the "from the cheapest" option, the prices did not include the "service maintenance" fee, which could result in the choice of a less profitable offer. Additionally, another e-commerce company was charged in May 2022, among other things, for a misleading website interface. The buyer had to figure out that he has to click the "ask for an item" button to avoid being charged with the "buyer protection" fee. The "buy now" button automatically involved charging the mentioned fee. 

The OCCP, as well engaging in Omnibus directive and dark patterns enforcement, is actively monitoring businesses that place emphasis in marketing and corporate communication on the environmental, social and governance (ESG) aspects of their activities – with an emphasis on the environmental. Currently, the president of the OCCP intends to clarify whether the ESG-related marketing practices used by entrepreneurs from the clothing and cosmetics market and retail platform can be as constituted greenwashing.