Dark Patterns in Gambling?

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In a recent article, we looked at the concept of so called “dark patterns” and the increasing scrutiny it is receiving from regulators in the UK and EU. In this article we focus specifically on the application of dark patterns in gambling industry and pressure the sector is coming under to address the use of these practices.

Behavioural Insights Team and Citizens' Advice have published reports on the gambling industry. They argue that the industry is high-risk and needs regulation. The Gambling Commission is ramping up its focus on this area.

Dark patterns are a subset of the term "online choice architecture" (OCA). OCA is the designs, systems and procedures that a website or app implements to influence an end user’s decision making. O CA is neutral but some forms of OA are considered deceptive, confusing or misleading. These forms are called "dark patterns".

Dark patterns are under increasing regulatory scrutiny in the EU and in UK. In the European Union, an express ban on dark patterns was introduced by way of the Digital Services Act adopted in October 2022. The European Data Protection Board published guidelines earlier this year. There are no UK laws that explicitly reference dark pattern activities. Depending on how a particular activity is undertaken, a range of laws and rules could be breached. The CMA's focus is on the impact that darkpatterns may have on both competition and consumer protection laws.

Compliance with consumer laws and social responsibility code is a condition of Gambling Commission's licences. Andrew Rhodes, CEO of the G gambling commission, says the Commission will focus more on the issues of unfair commercial practices and people's experiences with gambling. The prevalence of OCA practices in the online gambling industry is receiving attention. The Commission plans to increase the number of people employed in this area.

The Behavioural Insights Team (BIT) was set up in 2010 by the UK Government to inform policy. It was partially privatised in 2014 by way of a joint venture with the charity Nesta and will be wholly owned by Nesta in 2021. Its Gambling Policy and Research Unit recently undertook an audit of 10 gambling websites between March and April 2022.

BIT has published a report on the behaviour of gambling platforms. It found that it took longer to close an online account than to open one. The report also highlighted some dark patterns in the industry. BIT is working with the gambling industry to find solutions to these issues. They are not claiming that such practices are in breach of the law. Their main concern is to identify design features that may cause consumers to make choices not in their best interests.

It takes longer to close an online account than to open one. Customers often receive no feedback about the time or money they spent gambling during game play. Some websites used defaults that were not in the customer’s best interests. BIT found that it took on average three more actions to set up a deposit limit compared with placing a bet.

BIT published five recommendations for immediate action in November 2022. The Gambling Commission will consider them carefully. The Commission receives funding from BIT. Some of the issues will be given focus in upcoming compliance assessments. It is expected that some of these issues may be focus of upcoming GBC compliance assessment.

Customers should be able to unsubscribe from marketing in one click. Customers should not be signed up to additional products or sister companies. All gambling management tools should have easy to locate, evidence based and without visibility of adverts. Operators should contribute to testing what works and sharing their results publicly.

Citizens’ Advice published a report on online choice architecture on 1 December 2022. It claims there is a strong case for regulating digital design and for certain design practices to be banned.

The report recommends changes to the Consumer Bill and the CMA's guidance on digital design. It also recommends a review of online design practices and a ban on manipulative features. It is also recommending that the Gambling Commission consider introducing additional rules and guidance around how firms in their markets make decisions around design, and setting out guidance for business on features such as scarcity claims.

The government is using the Consumer Bill to create a requirement on business to take consumers’ best interests into account when considering digital design. The CMA should set out guidance for business on best practice around features such as scarcity claims.

DCMS should adopt a gambling white paper that adopts "safer by default" as standard practice for online gambling platforms. It should also include a call for design changes that promote the best interests of consumers. It gives an example that those currently in debt or at identifiable risk of falling into it should not receive targeted advertising or bonus offers.

DCMS should make gambling white paper safer by default for online gambling platforms. It should include a call for design changes that promote the best interests of consumers. It would also include increased clarity about when real gambling is happening and real spend is taking place.

The CMA is ramping up its data science unit and launched an investigation into the Emma Group in connection with its use of urgency claims. It has also launched a consumer-facing campaign called “The Online Rip Off Tip Off” which alerts consumers to ‘sneaky sales tactics’ used online by retailers. The C MAA could also ultimately lead to action from the Gambling Commission. The Commission is focusing on consumer law and fairness issues. They have also reinforced in recent speeches that this remains a priority area for them.

The idea of "fairness by design" is gaining traction in the gambling industry and beyond. Remote gambling operators should consider their website and app design across the entire customer journey.