Dark patterns: ACCC continues to advocate for unfair trading practices prohibition

We all encounter manipulative or deceptive design practices on websites and apps we access and use each and every day. Can these "dark patterns" ever be innocuous? There is continued regulator interest both in Australia and abroad as to when these practices and patterns become unfair.

Dark patterns are here, there and everywhere

The ACCC's Final Report from its Digital Platform Services Inquiry which was made available in June this year paints an interesting picture. It outlines that the OECD, in its survey across 20 countries, found that 90% of consumers had encountered a dark pattern on a website or app. Further, in 2024 the International Consumer Protection and Enforcement Network observed the prevalence of manipulative design practices across most website and mobile apps it surveyed globally. As we have commented on earlier, the European Commission has been focused on dark patterns for some time. The ACCC's Final Report picks up on the European Commission's Digital Fairness Fitness Check of 399 online retail websites, where the European Commission found that 40% of these websites relied on manipulative practices.

ACCC continues to advocate for the prohibition of unfair trading practices

The ACCC continues to advocate for an economy-wide unfair trading practices prohibition to be added to the Australian Consumer Law (ACL). As set out in the ACCC's November 2023 Submission to Treasury, this would apply to both online and offline business practices, and would seek to cover unfair conduct that may fall between the cracks of existing consumer and small business protections. For instance, conduct which distorts consumer and small business choice but is not necessarily misleading, or conduct that can be significantly harmful but does not meet the unconscionability threshold.

The ACCC's Final Report provides some examples of what it considers to be manipulative or deceptive design practices:

• In-game purchases: While the ACCC does not consider the immersive nature of online gaming to be inherently problematic, it identifies that there is a risk that online game players may be susceptible to interface design practices present in some online games which can manipulate them into making (ultimately unwanted) in-game purchases. Some potential manipulative practices include the confusing use of in-game currency and deceptive interface design (such as counterintuitive, inconsistent and confusing button configuration).

• General online retail marketplaces: The ACCC raises ongoing concerns with manipulative design practices on general online retail marketplaces that confuse users, make it difficult for users to express their actual preferences or manipulate them into taking certain actions. The ACCC also reiterates potentially problematic data collection and usage practices, such as bundled consents which leave consumers with limited effective choice as to how much data they share.

• App marketplaces: The ACCC notes continued concerns regarding the use of manipulative practices on apps, including "subscription traps" which can make it difficult for consumers to cancel their subscriptions.

How are these issues being tackled overseas? Let's take a look at the EU

The EU takes a two (or more) pronged attack – using both broad and specific approaches to prohibiting unfair trading practices. The EU's Unfair Commercial Practices Directive was originally adopted some time ago, in 2005, and prohibits two categories of harm arising from unfair commercial practices – misleading commercial practices (for example, those that are likely to deceive the average consumer of the existence, nature, characteristics or price of the product) and aggressive commercial practices (for example, use of harassment, coercion and undue influence).

Moving forward, the EU's Digital Services Act (which entered into full effect on 17 February 2024) expressly prohibits online platforms from using dark patterns (where the Unfair Commercial Practices Directive or the General Data Protection Regulation does not apply to the relevant practices). Article 25 specifies that "providers of online platforms shall not design, organize or operate their online interfaces in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions". The EU's Digital Markets Act (which became applicable on 2 May 2023) also operates in this space, with Articles 5 to 7 specifying various obligations on "gatekeepers" including in respect of data use and interoperability and Article 13 barring circumvention. Importantly for Australian businesses offering services to EU users, the Digital Services Act and the Digital Markets Act have extraterritorial reach.

Building on the findings of the European Commission's Digital Fairness Fitness Check, mentioned earlier, the European Commission has proposed a Digital Fairness Act. The European Commission notes that "taking into account the existing EU digital rule book, this initiative aims to tackle problematic practices such as unfair commercial practices related to dark patterns, misleading marketing by influencers, addictive design of digital products, [and] unfair personalization practices. It also aims to ensure a level playing field for online traders, facilitate enforcement and introduce potential simplification". The Digital Fairness Act has not been tabled yet, but preparatory activities are underway with a call for evidence open now and wrapping up on 24 October 2025.

Awaiting government updates on its approach to amending the ACL

In October 2024, the Australian Government announced reforms to the ACL to address a wide range of unfair trading practices. In November 2024, the Australian Government released a supplementary consultation paper. That paper proposed that the prohibition on unfair trading practices would comprise a general prohibition, a grey list of examples of conduct that are likely to satisfy the general prohibition (for example, impeding the ability of a consumer to exercise their contractual or other legal rights) and specific prohibitions which would prohibit certain types of conduct (for example, subscription-related practices). In March 2025, the Australian Government announced that it would extend the proposed unfair trading practices prohibitions to conduct involving small businesses (noting that such an approach has its opponents, particularly when parleying against freedom of contract).

We have not seen any draft legislation yet. However, it seems likely that any new general prohibition on unfair trading practices will extend to, at least the most common or obvious, dark patterns. We will continue to monitor developments.