Brightening the path for understanding certain dark patterns

Monica Iancu
Monica Iancu
Andra Gheorghe
Andra Gheorghe
Alina Zaharia
Alina Zaharia


It’s been a long time since the saying “the customer is always right” gained popularity in the relationship between traders and consumers. However, in the realm of digital commerce, the balance of power seems to be in traders’ hands, users becoming sometimes vulnerable to deceptive practices that go beyond persuasion and engage in subtle manipulation.

While many design strategies are aimed to improve ease of use and customer satisfaction, some resort to tactics known as “dark patterns” to coerce users into making decisions they might otherwise avoid. These practices have raised widespread concern among regulators, consumer advocates and the public, calling for greater transparency and ethical standards in digital design.

This article focuses on presenting some of the most commonly used dark patterns, namely the ones related to urgency, social proof and interface interference, while also underlying specific cases where such practices can be considered legitimate.

1. First steps in detecting a dark pattern – consumer protection framework.

The concept of “dark patterns” is generally used to describe a manipulative technique typically embedded in digital design interfaces, that lead users to make certain decisions (whether or not it may be in their best interest). Although not explicitly defined, when dark patterns are applied in the context of business-to-consumer commercial relationships, this concept may fall under the applicability of the Unfair Commercial Practices Directive[1] (“UCPD”), which aims to protect consumers from unfair commercial practices that distort their economic behaviour, thereby causing them to take a transactional decision that they would not have taken otherwise.

The UCPD’s broad scope includes any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale, or supply of a product to consumers. Therefore, depending on the specific of the dark pattern used, it may correspond to one of the following types of unfair commercial practices regulated by the UCPD: (i) misleading (Articles 6 and 7), (ii) aggressive[2] (Articles 8 and 9), and (iii) generally unfair practices (Article 5). The latter concept may be seen as a general category which covers any practices that breach professional diligence and impair consumer decision-making.

Dark patterns are commonly associated with misleading actions, that are classified as such when they contain false information and are therefore untruthful or in any way, including overall presentation, deceive or are likely to deceive the average consumer, even if the information is factually correct, causing them to make a different transactional decision[3] or with misleading omissions, when material information is omitted, preventing the consumer from making an informed decision, leading or likely leading them to a transactional decision they would not have made otherwise.

Dark patterns are also commonly associated with the specific commercial practices listed in Annex I of the UCPD, such as creating false urgency or providing misleading market information, which are considered in all circumstances unfair.

The above have been implemented in the Romanian law without substantial changes.

2. Types of dark patterns

Based on the types of techniques used to influence consumer behaviour, a general classification of dark patterns could refer to[4]:

– forced action – requiring unnecessary actions to access a functionality (e.g. mandatory registration);

– interface interference – presenting a specific design in a way that affect user’s decisions (e.g. false hierarchy);

– nagging – making repeated requests to do something that the online company prefers, (e.g., enabling notifications);

– obstruction – making an interaction more difficult in order to dissuade certain actions (e.g. hard-to-cancel services);

– sneaking – hiding or delaying crucial information, particularly regarding costs, that if made available to users, they would likely object to (e.g. sneaking an item into a consumer’s basket without consent);

– social proof – using social cues to influence decisions (e.g. notifications referring to other users’ activity);

– urgency – creating pressure with real or fake time-limits (e.g., countdown timers for deals).

The importance of these dark patterns led the European Commission to develop a comprehensive report, namely “Behavioural study on unfair commercial practices in the digital environment: dark patterns and manipulative personalization – Final Report[5] (the “EC Report”), where, among other things, it analysed the nature, prevalence, and impact of these practices.

Given the above and the fact that usually several dark patterns are combined in a single interface design, we will further explore some of the most common practices (namely the ones related to urgency, social proof and interface interference).

However, it must be outlined that, according to Annex I of the UCPD, while such practices are punishable if they are falsely used in a misleading manner, it is still possible to constitute an infringement, even if they are factually correct, if it’s likely to mislead the consumer into making a trading decision that he or she would not normally make (as per Art. 6 of UCPD).

3. Urgency

As a principle, these patterns (in the form of limited time messages / countdown timers or scarcity messages) are designed to create a sense of urgency by imposing deadlines for sales or offers or by indicating limited quantities, thus speeding up users’ decision-making and purchases, without sufficient time to consider their options.

3.1. Limited time messages / Countdown timers

Limited time messages indicate that a deal will expire soon, often without specifying when, thereby generating uncertainty and a fear of missing out. For instance, messages like “limited time offer” or “deal ends soon” can push users to act quickly, even if the deal is not genuinely time limited.

Countdown timers may display a ticking clock or a countdown that signals the end of a special price or deal, encouraging quick decisions. However, these timers are frequently deceptive, as offers may remain available after the timer expires. For example, there are countdowns for flash sales and free shipping that often reset with similar offers, suggesting that the urgency is fabricated to manipulate consumers into making hasty purchases.

Therefore, to avoid being considered they create a sense of urgency, companies should ensure that their business practices involve transparency by clearly communicating the terms of the promotional offer, including the exact duration and conditions, along with the following:

– making sure that the countdown timer is not false and at the end of the countdown, there is not a reset with the same conditions;

– making sure that the limited time messages are not false;

– making sure not to corelate the limited time messages / countdown timers with other contradictory information;

– making sure that the limited time messages / countdown timers are used to inform the customers about the actual deadline of a promotion and not to mislead them.

3.2. Scarcity messages

This category includes practices indicating limited quantities or signalling that a product is likely to become unavailable, thereby increasing its desirability to users. There are websites where such messages are shown for all products, regardless of their actual demand or quantity, to prompt users to make a purchase decision quickly:

(i) Low stock messages: some traders display messages indicating that products are in low stock, sometimes specifying the number of items left, as follows: “only 3 left in stock“.

(ii) Out of stock messages: traders also use messages like “you just missed it” to imply that the product was recently available but sold out, increasing its perceived value and attractiveness.

(iii) High demand messages: another common tactic is to display messages indicating that a product is in high demand, such as “selling fast” or “items in your cart are in high demand“.

Similar to the above, to ensure transparency and ethical marketing practices regarding scarcity messages, companies should:

– ensure that any messages about product shortages or limited availability are accurate and truthful, e. they are only used to inform consumers about the actual quantity of products;

– avoid exaggerating or fabricating scarcity to create artificial urgency, e., using a calculation method that does not falsely imply limited availability where, in relation to customer demand, there is a substantial quantity of products (e.g., more than 100 products);

– clearly communicate the true availability of the product, including any limitations or conditions that may affect its conditions of purchase;

– prove that such messages are used to genuinely inform consumers about limited availability offers.

4. Social proof

Social proof can be divided into two different dark patterns: (i) activity messages (misleading notice about other consumers’ actions to create a bandwagon effect) and (ii) testimonials / product reviews (misleading statements, using false, confounding, deceiving, with uncertain origin or exaggerated information).

4.1. Activity messages

These practices consist of informing the consumer of other users’ activity on the website (e.g. suggesting that other people have bought, visited, viewed a product, etc.), including messages like “72 people are looking at this right now” or “last bought 25 minutes ago”, without accuracy and truthfulness of the information displayed.

To effectively use activity messages, in order to improve user experience and engagement without resorting to deceptive practices, the following recommendations may be useful:

– making sure that showing that a product was bought by other X customers is neither confusing nor biased, as it is an accurate information, displaying real-time data;

– making sure that activity messages are used solely with the scope of informing the users about popular or trending items without misleading them;

– making sure not to corelate the information related to the number of customers who have bought the products with other labels, such as the ones who create a sense of urgency;

– protecting user information and adhere to privacy regulations when displaying such activity data.

4.2. Testimonials / product reviews

Testimonials / product reviews[6] play a significant role in influencing consumer purchasing decisions both online and offline, leading to the emergence of several practices in this area, such as:

(i) Fake reviews: some traders engage in posting fabricated positive reviews to artificially boost product ratings and perceived popularity, where sometimes not even the source of them is revealed. These reviews are often written by individuals who have not used the product or by paid reviewers incentivized to leave positive feedback without disclosing their sponsorship.

(ii) Selective publishing: traders may selectively publish only positive reviews while suppressing negative feedback. By presenting a biased view of consumer experiences, they create a misleading impression of product quality and customer satisfaction.

Therefore, methods of avoiding dark patterns in such a context may include:

– verifying review authenticity to accurately reflect real users’ experiences, ensuring such processes are proportionate and user-friendly to encourage genuine feedback;

– refraining from exploiting the influence of reviews for commercial gain;

– regularly monitoring and moderating reviews to detect and remove any false or misleading content promptly;

– clearly disclosing any affiliations or compensation related to endorsements, ensuring that consumers are aware of any potential biases.

5. Interface interference

This category involves practices that use visuals, language, or emotional signals to guide users toward or away from making specific choices, referring, for instance, to important information visually obscured or ordered in a way to promote a specific option. Although traders are required to ensure their digital interfaces do not distort consumer choices, there are several dark patterns used to manipulate their final decision.

According to the EC Report, when assessing the dark patterns used by type of website/ apps, hidden information and false hierarchy were the most used practices for areas such as arts and entertainment, marketplaces /e-commerce, social media / social networks, and transport / travel.

5.1. Hidden information

This category includes using style and visual presentation to guide users toward specific decisions. This practice often involves hiding important information or presenting it in a way that tricks users, i.e., critical information can be visually hidden, or the trader could make the desired option more prominent, either with a larger or brighter font or a green colour.

Specifically, hidden information may consist of displaying certain information, e.g. on price, conditions, or data processing, in very small print or in less visible colours, or in long terms and conditions, or only available after several clicks.

However, a catchy web design may still be used without falling under the dark patterns concept if, for instance, the company:

– proves that the visual / aesthetic design is used as a marketing and advertising strategy;

– proves that there is no hidden information, and the website may be accessed in an easy, effortless way by the consumer;

– focuses on clarity and simplicity, by not overloading the web interface with excessive design elements that can distract or confuse users;

– making sure that the options offered are using the same colours and fonts.

5.2. False hierarchy

False hierarchy involves pre-selecting more expensive variations of a product or pressuring users to accept specific variations by making the desired (and often higher priced) option more prominent through the use of colours, larger fonts, and easier acceptance paths, while other options might be less positively presented or requiring navigating through additional pages.

In practice, this dark pattern is frequently used to incite the user to accept cookies, or to refuse deleting an account / cancelling a subscription, as well as to encourage consumers to accept additional notifications. For instance, traders may use different sizes of the buttons on the initial screen or a brightly coloured “Accept All” button for cookies, while the “Manage Settings” option is greyed out or harder to find.

Although often combined with visual design, an accurate hierarchy may still be used by companies to ensure a user-friendly experience by:

– proving that the hierarchy is accurate, e. there is a reasonable reason for presenting the products / choices in a specific way;

– presenting all user’s options, including less profitable ones, as neutrally as possible;

– avoiding using contrasting colours or sizes to make one option more prominent than others;

– maintaining consistency in the design elements, including button placement, to prevent any option from being chosen without intention.

6. Potential infringements of UCPD provisions

If the aforementioned commercial practices are found to exceed legitimate persuasion, they may qualify as unfair commercial practices in breach of various UCPD regulations, as summarized in the table below:

7. Legal benchmark – the average consumer

It is essential to note that not every dark pattern constitutes a breach of the UCPD, as it takes the average consumer[12] (who is reasonably well informed and reasonably observant and circumspect, considering social, cultural, and linguistic factors) as a benchmark[13] for determining the existence of an infringement.

According to the Guidance on UCPD interpretation, the average consumer test is not a statistical test. Hence, national courts and authorities will have to use their own judgment to determine the typical reaction of the average consumer in a given case, considering the case-law of the Court of Justice of the European Union (“CJEU”).

To further delve into this notion, it should be pointed out that the same concept was analysed in the Advocate General’s Opinion in the Mediaprint Zeitungs case (CJEU Case C-540/08[14]), where the importance of balancing consumer protection with the need for a free-flowing internal market characterized by fair competition was outlined. Specifically, this opinion pointed out that “the average consumer is aware, as a rule, that advertising and sales promotions in a free market economy not only attempt to win over customers by the price and quality of the product but promise a number of additional benefits. These may be of an emotional nature, such as, in the case of advertising, the feeling of freedom and independence or membership of a certain social group, or additional benefits with a completely economic value, such as bonuses. It is therefore logical to leave it to such a reasonably well-informed and reasonably observant and circumspect consumer within the regulatory framework defined by Community law to decide whether to purchase a product on the basis of the advertised advantages or because of its quality or even its low price”.

As a result, this opinion clarifies that while high standards are necessary to protect consumers from unfair practices, not every marketing tactic that influences purchasing decisions should be deemed unfair. This pragmatic approach supports the idea that legitimate persuasion can help consumers make informed choices without affecting their autonomy.

8. Conducting investigations in Romania and abroad

The issue of dark patterns has become a Europe-wide concern, leading the European Commission and the Consumer Protection Cooperation Network to publish, at the end of January 2023, the results of an inspection campaign[15], which revealed that nearly 40% of the 399 surveyed online stores used manipulative practices (i.e. dark patterns). The most common tactics included fake countdown timers, hidden essential information and web interfaces designed to induce purchases or subscriptions.

An example of dark patterns that was recently sanctioned is Amazon EU S.A.R.L.[16] (which oversees Amazon’s Polish e-commerce site), which in March 2024 received a fine of nearly USD 8 million (PLN 31,850,141) in Poland for employing deceptive design tactics on its online marketplace. The penalty was issued due to practices that created a false sense of urgency and misled consumers about product availability and delivery times. These tactics included using countdown clocks and displaying stock availability inaccurately, which sometimes resulted in Amazon failing to meet promised delivery deadlines or having products in stock as advertised. Additionally, critical information for consumers was often obscured or presented in a less visible format, such as grey text on a white background, characteristic of dark pattern design.

At national level, the Romanian National Authority for Consumer Protection (“NACP”), which is tasked with monitoring and regulating consumer rights and practices within Romania, has also shown interest in investigating the use of dark patterns, although the public information on the results of its investigation is scarce. For instance, the NACP’s 2022 Activity Report[17] includes a section dedicated to dark patterns, briefly presenting an investigation involving 399 websites / virtual stores selling products ranging from textiles to electronics. The investigation focused on three specific types of manipulation practices that are used by online sellers to get consumers to make choices that might not be in their interest, the so-called dark patterns. Among them were: (i) false countdowns; (ii) web interfaces designed to determine the consumers to make purchases, buy subscriptions or choose other options; (iii) hidden information. The investigation showed that 148 sites contained at least one of the three dark patterns in question.


Dark patterns are considered increasingly prevalent across online platforms of varying sizes and sectors, highlighting the need for robust regulatory frameworks and enforcement mechanisms. As a general rule, even accurate information can be considered dark patterns and be subject to sanctions if they are misleading or likely to mislead the average consumer. Therefore, the focus is on the presentation and perception of the information, not just its factual correctness.

Although the UCPD does not require intention for the deployment of the dark pattern, there are several ways for companies to prove that their business practices represent legitimate advertising and marketing strategies, designed to attract customers in a free market economy rather than to distort their decision.

Therefore, when assessing a dark pattern as a potentially unfair practice, a case-by-case analysis must be conducted, to assess whether it does represent or not a simple legitimate persuasion attempt to attract average customers, which are expected to be aware of the potential risks associated with certain legitimate commercial practices and to act accordingly.

[1] Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council.
Nevertheless, dark patterns may also infringe specific provisions from other European pieces of legislation, such as Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) or the 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”), but this article focuses on the consumer protection legislation.
[2] This term covers those practices which significantly impair the consumer’s freedom of choice using harassment, coercion, including the use of physical force, and undue influence.
[3] According to the Commission’s Guidance on the interpretation and application of UCPD (“Guidance on UCPD interpretation” – available here, the concept of “transactional decision” also covers decisions such as continuing to use the service (e.g. scrolling through a feed), to view advertising content or to click on a link.
[4] For a detailed classification, please see the OECD report “Dark commercial patterns“, dated October 2022, available here, together with its Annex A, which provides various examples of dark patterns on websites and apps.
[5] Available here.
[6] According to the Guidance on UCPD interpretation, the notion of “reviews” should be interpreted broadly, including practices related to ratings.
[7] In relation with testimonials / product reviews, it is considered applicable UCPD Art. 7(6): Misleading omission (Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material).
[8] Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
[9] Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favorable than normal market conditions.
[10] Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers).
[11] Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote product.
[12] This “average consumer” standard is crucial in assessing the fairness of commercial practices and was commonly used in CJEU case laws, including in the Gut Springenheide und Tusky case (CJEU Case C-210/96) and Kessler case (CJEU Case 303/97).
[13] Nevertheless, the UCPD also contains provisions aimed at preventing the exploitation of consumers whose characteristics make them particularly vulnerable to unfair commercial practices.
[14] Available here.
[15] Available here.
[16] The press release is available here.
[17] Available here.

Monica Iancu, Partner BONDOC & ASOCIAȚII
Andra Gheorghe, Managing Associate BONDOC & ASOCIAȚII
Alina Zaharia, Junior Associate BONDOC & ASOCIAȚII