Do you use ‘high-pressure’ selling techniques online?
This article is offered as a wake-up call for users of high-pressure selling techniques online, also known as ‘dark patterns’.
Currently, the main protection for consumers from misleading sales and marketing practices is the Unfair Trading Regulations 2008. This is enforced in the courts by the Competition and Markets Authority (CMA).
When the Digital Markets Competition and Consumer Bill comes into force, which is due quite soon, the CMA will have the power to levy fines directly.
For some time, the CMA have been investigating what is described as ‘online choice architecture’, or OCA.
Very broadly, and at the risk of overly crudely summarising all the refined academic learning on this subject, this is about the manner in which the websites where we buy things are structured, and describes how consumers can be influenced to make choices and decisions. In particular, the CMA is interested in the harms caused when decisions are made under pressure because of the OCA.
It all depends on the way the seller designs their site.
If you are a business that sells online, it’s a timely insight into where legislation and obligations are going in the fairly near future. Studies have already been done, the CMA are now pursuing investigations, and enforcement action has been taken.
For example, two investigations have been announced which bring the OCA features and harms to life.
Example 1
On 7 July 2023, a CMA press release announced the results of their investigation launched in November 2022 into the online selling practices of the Emma Sleep company and group. They focused on claims that discounts, urgency messages and countdown timers were misleading consumers.
They’ve now written to companies in the group to say, yes, they found evidence that their discount claims were not matched by reality in terms of actual savings, in that their countdown timers and claims of high demand misled consumers and so were against consumer protection laws.
For example, on the site, Emma used comparisons between ‘Was’ and ‘Now’ pricing. The CMA found that only a small proportion of their products were actually sold at the ‘Was’ price, so the ’Now’ price did not demonstrate a real saving at the level they claimed against the usual price at which it was actually sold.
Also, Emma used countdown timers. It looked like a digital clock showing how many hours, minutes and seconds until the discount ceased to be available. However, the CMA identified that, often, when the clock timed out, it was replaced – even within 24 hours – by a new countdown for the same or similar discounts.
They found that there was no genuine urgency, and the suggestion of urgency was misleading.
The CMA consider that, when such features are used alongside claims of high demand, it pressurises shoppers and leads them to make rushed purchases.
Emma now has the opportunity to respond to the CMA about these concerns, and the company can avoid court action if it gives appropriate undertakings to change its online sales tactics.
This is part of broader CMA work into OCA with the aim of tackling harmful online sales practices.
Example 2
In March 2023, the CMA investigated Wowcher Ltd, Living Social Ltd, and other firms in the group, to examine whether they misled consumers by using countdown timers and other urgency claims.
The theory behind these selling techniques
Famous for his book, ‘Influence: The psychology of persuasion’, psychologist Robert Cialdini gives seven principles of persuasion:
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In addition to those, marketers are taught the principle of urgency. It taps into FOMO – the fear of missing out – and influences decision-making.
Look out for the words ‘urgent’, ‘act now’, ‘time-limited offer’, ‘low stocks’…
Online red lines
On 29 March 2023, the CMA wrote an open letter to UK businesses setting out ‘online red lines’ around misleading urgency and price reduction claims.
To understand this in more detail…
The CMA document published in April 2022 called ‘Online Choice Architecture: how digital design can harm competition and consumers’ sets out practices that can result in pressure being applied to consumers and identifies a range of features that are potentially harmful on almost every occasion. That includes:
That’s when the purchase process includes so many options, choices and distractions that it’s overwhelming.
For example, you choose what you want from an online supermarket, and have to click through three or four screens of other products with a hard-to-find ‘No thanks’ button followed by an ‘Are you sure’ button before you finally reach the checkout.
Dark patterns
The CMA looked at the following sectors:
They named ‘drip pricing’ and ‘hidden fees’ as ‘dark patterns’.
They named ‘Sludge’ as the way the sale is set up, such as magazine subscriptions that are extremely easy to set up, but, once a consumer has made the purchase, there are a great many barriers for them to get through in order to achieve cancellation.
And they named ‘dark nudges’ as products and services where the first month is free but it’s difficult to get out of the deal once the free period is over.
What this means to you
Let’s be clear, anyone who sells online is affected by this, not just the two groups mentioned above.
Scarcity and urgency are highly effective, long-standing persuasion techniques, so beware what your marketing agency recommends! You need to keep in mind whether they are legitimate. It’s one thing if your offer is genuine. It’s another thing if it’s faked or so exaggerated it would no longer pass a fact check.
If you have 2 items left and you say you have 2 items left, that’s fair enough. But if you say you have 2 left and you really have a shelf of 2,000 items that will become available when those 2 are sold… that’s another matter.
I’m sure you wouldn’t dream of using high-pressure selling techniques online! But, sometimes, the design of your ecommerce site that’s aimed at removing friction from the sales process and making it easier for the consumer to make a decision might accidentally tip over into a dark pattern (if too enthusiastically pursued and not thought through carefully enough).
Remember the consequences if the CMA decide to take action against you (as they have commenced with Emma and Wowcher). In future, they will have the power to directly levy fines.
If you have questions about anything to do with online selling, please give me a call on 020 3609 8764 as it’s one of my areas of expertise.