Tag: traps

Marketing and advertising tips, traps and trends for 2023 – Commentary

Dark patterns
Drip pricing banned
Environmental claims
Virtual influencers
Increased penalty for deceptive marketing
Accessibility
Healthwashing
Competition Bureau takes action against Health Canada licensed product
“Import for personal use” option for regulated products
Power of platforms

This article highlights key tips, traps and trends for advertisers for 2023.

Dark patterns

The term “dark patterns” was first coined over a decade ago but appears to have been more widely on the radar of regulators and consumers only recently. It refers to the use of deceptive user interfaces to manipulate or trick consumers to engage in certain behaviour contrary to their original intention. Dark patterns can encompass a range of tactics, including “roach motel”, “misdirection” and “sneak into a basket”.

Certain jurisdictions, including the United States and the European Union, have introduced new initiatives or actions explicitly addressing dark patterns. In Canada, although the “dark patterns” term is not yet widely used, regulators have also taken action against dark patterns. For example, in 2020, the Competition Bureau warned Canadians about “no-strings attached” trial offers“, following up in 2021 with a fine against a Canadian company of C$15 million for a “subscription trap scam“.

In terms of new legislation, Bill C-27 (currently at second reading), which proposes to replace the Personal Information Protection and Electronic Documents Act with the Consumer Privacy Protection Act, regulates private-related dark patterns. Section 16 states: “An organization must not obtain or attempt to obtain an individual’s consent by providing false or misleading information or using deceptive or misleading practices“. (Emphasis added.)(1)

Drip pricing banned

In Canada, most types of dark patterns are only regulated pursuant to general provisions against:

  • false and misleading advertising (eg, in the Competition Act);
  • unfair practices (eg, in provincial consumer protection legislation); and
  • privacy laws.

However,

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