Dark Patterns becoming a new hot topic for the Polish regulator

Since last year, online platforms and businesses must be more careful not to use dark patterns to deceive or manipulate consumers. The Polish Office of Competition and Consumer Protection (The Office of Competition and Consumer Protection (Polish: Urząd Ochrony Konkurencji i Konsumentów; UOKiK) is a Polish authority with jurisdiction over the protection of the collective interests of consumersboth and antitrust cases.)  (‘UOKiK’) has come out strongly against such behaviour and is going to be even more active this year.

Dark patterns are deceptive design techniques and practices used in digital interfaces (websites, mobile apps etc.) to manipulate and trick users into taking certain actions that they may not have intended or desired. Although the regulation directly prohibiting dark patterns (Digital Services Act – “DSA”) (On 27 October 2022 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) (Text with EEA relevance) (“DSA”) was published in the Office Journal of the European Union. The DSA entered into force on November 16, 2022. While some of the articles of the DSA already apply, the DSA will be fully applicable from February 17, 2024. The text of the DSA can be found here.) is not yet fully applicable within the European Union, such practices are also prohibited by the Polish Act on Counteracting Unfair Market Practices (Act of 23 August 2007 on counteracting unfair market practices (Journal of Laws of 2007 No. 171 item 1206).) (implementing Directive 2005/29/EC on unfair commercial practices in the internal market). They may be classified as an unfair market practice that misleads consumers and can lead to a penalty of up to 10% of the business’s annual turnover.

Allegations against the OLX.pl platform

In one notable case, the UOKiK launched a proceeding against OLX.pl (“OLX”), a popular online trading platform in Poland.

The UOKiK has charged the company with misleading offer sorting. When a user tried to sort the search results using the 'From the cheapest' option, the prices did not include the OLX service fee, which, according to the UOKiK, could have affected when such service fee is modifying the ranking order (as marked in the example below, where product X should be listed as second because its ‘full price’ is higher than the price of product Y’).

The OLX service fee was only added to offers that include OLX shipping and OLX payment (services offered by the OLX platform).

The UOKiK has also expressed some further concerns about:

• the OLX not informing users that they can buy a product with no additional payment by collecting their purchase directly from the seller;
• the OLX’s “Protection Package” service granting buyers with additional protection in case of misdelivered items, which in the UOKIK’s view was “illusionary protection” because in reality:
  • the process of notifying delivery errors favored sellers over buyers, and
  • the application of such protection was heavily restricted in the terms and conditions.

The UOKiK stressed that such practices are deceptive and violate consumer laws and as such they constitute a dark pattern. The case is still pending, and no decision has yet been issued. OLX has declared it will cooperate fully with the UOKiK.

Penalty for Vinted.pl

In another case, the UOKiK penalised Vinted.pl (“Vinted”), a popular online marketplace for second-hand clothing in Poland. The UOKiK accused Vinted of failing to inform sellers that access to the money they earn through Vinted may involve their additional identity verification. Further, Vinted shown insufficient information on its “Buyer Protection” fee and how to purchase items without having to pay it.

Importantly, the decision does not prejudge whether Vinted has to offer purchases without additional fees, only that it should inform buyers about such possibility if it is available. The UOKiK stated that where purchasing with ‘Buyer Protection’ is the only option, the fee for that service should be included in the product price displayed. At the time, it was only added at the last stage of the ordering process.

The UOKiK considered these practices dark patterns and fined Vinted more than 5.3 million PLN (approximately 1.14 million EUR). Vinted appealed against this decision.

Allegations against born2be.pl and renee.pl

In March, the UOKiK questioned practices by the online clothing stores born2be.pl and renee.pl (owned by Azagroup), which suggested to consumers that special benefits were available only for a limited time, when in fact they were continuous promotions.

The activities that UOKiK assessed as dark patterns were clocks displayed at the top of webpages that counted down the time until the end of a promotion. According to UOKiK, this pressured consumers by giving the impression that there was a time limit for the promotion. Yet, when the time ran out, the clock was reset and began counting down to the end of the next offer.

Expected further UOKiK actions

We expect that the UOKIK is going to conduct further inspections on the use of dark patterns by online platforms.

Only this year, the UOKiK inspected around 40 websites for compliance with the new obligations to provide information on price reductions under Directive 2019/2161(Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules (Text with EEA relevance) (the ‘Omnibus Directive’). Among the irregularities identified, dark patterns involving hidden product price information stand out, so we can also expect this to continue to be an important issue when assessing shops’ compliance with the Omnibus Directive.

These cases demonstrate the UOKiK’s commitment to enforcing the consumer protection laws on dark patterns which is likely to strengthen even more when DSA starts to apply in 2024.

The UOKiK’s press release on its allegations against OLX can be found here (available in English)

The UOKiK’s press release on its allegations against born2be.pl and renee.pl can be found here (available in English)

The UOKiK’s decision on the penalty for Vinted can be downloaded here, from the Polish version of the press release (the decision is only available in Polish)