The Digital Fairness Act (DFA) is an upcoming EU regulation. The European Commissioner for Democracy, Justice and Rule of Law Michael McGrath will be responsible for the proposal of the regulation. The Digital Fairness Act is expected to tackle a number of practices which could be considered problematic or abusive.

Some of these practices covered by the DFA include dark patterns, addictive design, personalisation, influencer marketing, contract cancellations and digital subscriptions, unfair contract terms.

Dark Patterns

Sometimes called deceptive design, dark patterns refer to elements in user interfaces that manipulate consumers into taking decisions they would have not otherwise taken. Examples of this include:

• Hiding Information: Websites or apps obscure important details, making it difficult for consumers to make informed decisions.

• Creating False Hierarchies in Choice Architectures: Presenting options in a way that promotes certain choices over others, often those more beneficial to the trader.

• Repeatedly Making the Same Request (Nagging): Continuously prompting consumers to make a decision, such as upgrading to a premium account or purchasing recommended products.

• Difficult Cancellations: Making the process of cancelling a contract or subscription disproportionately onerous, complex, or time-consuming.

• Forced Registrations: Requiring consumers to register or sign up before they can access certain features or complete a purchase.

• Using Fake Countdown Timers to Create Urgency: Displaying false time constraints to pressure consumers into making quick decisions.

• Using Emotional Manipulation to Make Consumers Second-Guess Their Indicated Choice (Confirm-Shaming): Utilizing emotive language or framing to pressure or shame consumers into a particular choice.

• Phrasing Questions Using Double Negatives: Confusing consumers with misleading or ambiguous language, making it unclear what they are agreeing to.

• Misleading Consent Options in Cookie Banners: Presenting consent choices in a non-neutral manner, often making it easier to accept all cookies than to reject them.

• Sneaking Practices: Adding items or charges to the shopping basket without the consumer's explicit consent, such as the inability to turn off auto-renewal of subscription services.

• Interface Interference: Designing interfaces that make a subscription or purchase option more prominent, steering consumers toward choices that benefit the trader.

• Pressuring Consumers with Urgency and Scarcity Claims: Using statements like "only a few items left" or "high in demand" to create a false sense of urgency.

• Drip Pricing: Adding new charges to the total price during the purchasing process, leading to a final price higher than initially advertised.

• Sneak into the Online Basket: Adding additional products or services to the shopping basket as consumers are about to complete a purchase.

• Making Indicated Choices Lead to Unexpected Results: Designing choices so that selecting an option leads to a different outcome than what the consumer would normally expect.

• Visually Obscuring Important Information: Ordering or displaying information in a way that hides critical details, promoting options not in the consumer's best interest.

• Unclear Labels for Sponsored Search Results: Using labels that are not very clear to distinguish sponsored results from natural search results on marketplaces or comparison tools.

• Preselected Options Favoring the Company: Presenting preselected options that benefit the trader, with difficulty in changing those settings.

• Making It Difficult to Exercise Consumer Rights: Designing websites or apps in a way that makes it hard to understand how to make a complaint or receive compensation.

• Claims of Limited Time Availability: Using messages like countdown timers to suggest a product is available only for a limited time, pressuring consumers to act quickly.

• Misleading Availability Claims: Providing inaccurate information about product availability to induce consumers to make a purchase.

• Bait and Switch: Offering products at a specified price without disclosing that they are unavailable, intending to promote a different product instead.

• Fake Prizes: Claiming the consumer has won a prize without awarding it or providing an equivalent.

• Misleading 'Free' Claims: Describing a product as 'free' when the consumer must pay unavoidable costs.

• Unwanted Solicitations: Making repeated intrusions during normal interactions to get the consumer to accept something.

• Confirm-Shaming Messages: Asking questions like "Are you really sure you do not want a discount?" to make consumers doubt their decisions.

• Complex Language or Design Leading to Confusion: Using confusing language or design that makes consumers uncertain about what they're signing up for or their rights and obligations.

• Increased Anxiety Through Interface Design: Designs that hamper the consumer's ability to make a decision, increasing heart rate and anxiety.

• Exploiting Vulnerabilities: Targeting older consumers or those with lower education levels who are more impacted by dark patterns.

• Using Double Negatives in Questions: Phrasing questions in a way that confuses consumers, leading them to make unintended choices.

These examples illustrate how dark patterns manipulate consumers through design and language choices on digital platforms, often leading them to make decisions they might not have made under transparent circumstances.

Addictive design and gaming

Addictive design refers to interface features and functionalities intentionally crafted to prolong user engagement, often leading to digital addiction. Here is a list of examples of addictive design features and functionalities:

• Autoplay: The automatic playing of new content without user initiation.

• Pull-to-refresh: Allowing the consumer to manually reload the system for new content by pulling the interface.

• Infinite scroll: Eliminating natural stopping points by continuously showing new content as the consumer scrolls down.

• Ephemeral content: Content that is temporarily available, encouraging frequent engagement to avoid missing out.

• Badges and rewards: Incentives for continued engagement, such as earning badges or rewards for consistent use.

• Penalties for disengagement: Negative consequences or loss of benefits for not engaging regularly.

• Interaction-based recommender systems: Systems that recommend content based on user interactions, promoting prolonged use.

• Notifications: Alerts delivered during or outside of interaction with the service to prompt re-engagement.

• Gamification: Integration of game-like elements in non-gaming environments to increase user engagement.

• Slot machine designs: Gaming designs that mimic slot machines to induce repetitive behavior.

• Loot boxes: Virtual items with uncertainty-based rewards, encouraging repeated purchases.

• Betting: Features that involve wagering within games.

• Offering micro-transactions during critical moments in the game: Prompting purchases when the user is most engaged or vulnerable.

• Pervasive nagging: Repeated prompts or reminders to encourage continued use or purchases.

• Use of visual or acoustic effects to put pressure on the consumer: Stimuli designed to encourage further expense or engagement.

• Time-based elements: Features like daily rewards, streaks, and countdowns that encourage regular engagement.

• Gambling-style mechanisms: Elements such as loot boxes, wheels of fortune, and free samples that mimic gambling.

• Visual design and unclear labeling: Design choices that obscure information or manipulate user perception.

• Push notifications: Alerts sent to the user's device to encourage them to return to the app or service.

• Incentives for continued playing: Rewards or benefits given for ongoing engagement.

• Penalties for discontinuing gameplay: Negative consequences for stopping use, such as losing progress or benefits.

• ‘Pity timers’: Mechanisms that increase the odds of winning after many losses to keep users engaged.

• Pay-to-win models: Games where spending money gives significant advantages.

• Features that offer the possibility to pay to remove pressure or skip forced waiting: Options to pay to bypass delays or difficulties.

• In-app virtual currencies: Use of intermediate currencies that obscure the real cost of in-app purchases.

• Complex currency mechanisms: Multiple virtual currencies and extensive object inventories that encourage spending.

• Social media integration: Encouraging users to connect through social platforms to share achievements and invite others.

• Age verification tools that may not be effective: Inadequate measures that fail to prevent minors from accessing inappropriate content.

• Algorithmic systems that stimulate behavioural addictions: Use of algorithms to encourage addictive behaviours.

• 'Rabbit hole effects': Design of systems that lead users into deep engagement loops.

• Unclear pricing and bundling: Practices that make it difficult to understand the real price of virtual items.

• Lack of natural stopping points: Design that prevents users from easily disengaging.

• Time loss and mental harms: Design elements that lead to excessive time spent and potential mental health issues.

• Gambling-like features: Including loot boxes, betting, and skin gambling/betting.

Personalisation

Problematic personalisation practices involve the unfair and often opaque use of consumers' personal data by businesses. Many consumers are worried about how their data is collected, used, and shared. A significant issue is the inability to opt-out of personalised offers. Additionally, companies often exploit consumer vulnerabilities by using personal information to target individuals in ways that manipulate their decisions, such as showing ads related to financial distress or emotional issues.

Another major problem is the lack of transparency. Some consumers find it difficult to understand how their data is being used due to confusing website designs or language. Many also struggle to understand profiling not knowing how their profiles affect the content they see. Personalised pricing is another concern, where prices may vary without clear reasons, making it unfair for some consumers. Vulnerable groups like older people or those with lower education levels are less aware of these personalisation practices, increasing the risk of misuse.

Influencer marketing

Commercial practices on social media platforms, especially influencer marketing, have several issues that can affect consumers negatively. Many consumers find it hard to recognize when content is a paid advertisement. This lack of transparency leads to confusion and mistrust. Additionally, influencers sometimes promote harmful or misleading products, such as scams, unhealthy foods, alcohol, and dangerous services. Children are particularly vulnerable to aggressive marketing of unhealthy products. Examples of problematic Influencer marketing practices include:

• Lack of Clear Disclosures: Influencers use vague terms like “collaboration” or “partnership” instead of clearly stating that a post is an advertisement.

• Promotion of Harmful Products: Influencers advertise unhealthy foods, alcohol, vaping products, and risky financial services like crypto trading. In certain cases, these are targeted to minors which influence their eating habits and behaviours negatively.

• Difficulty Distinguishing Commercial Content: Even with disclaimers, many consumers assume content is personal recommendations rather than advertisements.

Contract cancellations and digital subscriptions

Digital contracts and subscriptions often create challenges for consumers. Many find it difficult to cancel their subscriptions online. Other issues include automatic renewals or hidden price increases. Examples of Problematic Practices inculde:

• Complicated Cancellation Process: Websites make it hard to find the cancellation option or require many steps to cancel a subscription.

• Automatic Renewals Without Notice: Subscriptions renew automatically without reminding consumers, resulting in unexpected charges.

• Hidden Price Increases: After a free trial, the subscription price goes up without clear information about the new cost.

• Free Trials Turning into Paid Subscriptions: Free trials convert to paid subscriptions without explicit consent, making it easy to be charged unknowingly.

Unfair contract terms

Unfair contract terms happen when businesses include conditions in their agreements that are bad for consumers. Often, consumers don’t read the Terms & Conditions because they are too long, complicated, or hard to find. This makes it easy for businesses to include unfair rules that consumers might not realize they are agreeing to. Examples of Unfair Contract Terms include:

• Data Misuse: Allowing businesses to keep and use personal data even after the contract ends.

• Limited Liability: Businesses are not responsible for service interruptions or data loss.

• Unilateral Changes: Businesses can change the terms without asking the consumer.