Two new studies have revealed that the majority of websites and apps that offer subscription services use ‘dark patterns’, which are design techniques that can manipulate consumers into paying more than they need to for a product, keeping a product they no longer need, or allowing a platform to harvest more data.
The first study, by the International Consumer Protection And Enforcement Network, reviewed 642 websites and apps and found that 76% of those services employed at least one dark pattern, while 67% employed more than one. The other study, from the Global Privacy Enforcement Network, found that the majority of websites and apps employ dark patterns to encourage individuals to provide more personal information than they intended.
These studies have been published as the way Spotify presents its different subscription products is increasingly in the spotlight. In some markets Spotify now offers a 10.99 subscription that provides access to music and podcasts, and a 11.99 subscription that also includes audiobooks. Except, for new subscribers, only the 11.99 product is available.
Audiobooks were automatically added to the main Spotify premium product last year, initially for free. Then the extra one pound a month was added to the subscription price. Existing users who have no interest in accessing audiobooks from Spotify - which is likely most existing users - now need to login to the Spotify website and find the ‘available plans’ page in order to switch to the 10.99 option.
This is annoying for Spotify subscribers everywhere, but of particular concern for the music industry in the US. Because Spotify has classified the 11.99 product that includes music, podcasts and audiobooks as a bundle, which allows it to pay a lower royalty rate to songwriters and music publishers under the compulsory licence that applies to streaming in the US. That classification is being disputed in the courts, but is currently impacting on royalty payments.
The ICPEN report identifies a number of different dark patterns, some of which could be applied to Spotify’s tactics for making it more difficult for consumers to choose the 10.99 subscription product without audiobooks.
Those include ‘sneaking’, where a platform tries “to hide or delay disclosing information that is important to a consumer’s purchase decision”; ‘interface interference’, which is an “attempt to frame information in such a way that it steers consumers towards making decisions that are more favourable for the business”; and ‘obstruction’, practices that try to dissuade the consumer from taking an action by rendering a task flow more difficult or tedious.
The GPEN report is focused on data protection and privacy. It concludes that “users are likely to encounter, in the vast majority of cases, at least one dark pattern when interacting with websites and apps”, and that “many websites and apps have been designed to encourage users to make privacy decisions that may not be in their best interest”.
Some uses of dark patterns may violate consumer rights, data protection and privacy laws in some jurisdictions, although these two reports didn’t consider which of the practices they identified might be unlawful.
However, both reports confirm that the use of dark patterns is widespread, with GPEN saying that it hopes its study will “support targeted education, outreach to organisations and/or enforcement actions in the future”.