Jasmine Samra
Counsel
Article
Deceptive design patterns (also known as “dark patterns” or “dark commercial patterns”) refer to digital practices that can manipulate users’ decision-making, often leading them to make choices that are not in their best interest. In its 2022 policy paper, the Organization for Economic Co-Operation and Development (“OECD”) explained how dark patterns typically fall into one of the following categories:
Dark patterns are important not only in the consumer protection context but have considerable privacy implications. In recent years, the conversation surrounding deceptive design patterns has gained traction in Canada, as regulators take a closer look at how businesses are using such practices.
The Office of the Privacy Commissioner of Canada (“OPC”) has been vocal about the negative impacts of deceptive design patterns on privacy. In late 2024, the OPC published a report on dark patterns that reviewed 145 websites and apps in various sectors across Canada using much of the OECD criteria. This was part of a coordinated effort amongst 25 international privacy authorities in the Global Privacy Enforcement Network’s (“GPEN”) sweep on dark patterns.
The Canadian sweep primarily examined retailer websites and apps, which made up 50 per cent of the reviewed platforms, while 11 per cent were from the news, media, gaming, and entertainment sectors. Following the report, the OPC has begun reaching out to organizations whose websites and apps contain dark patterns.
Key findings from the report include:
The OPC’s report signals its concern that dark patterns will operate to obscure meaningful user consent and negate the requirement to ensure that consent be informed and obtained through clear, straightforward user interactions. In the view of the OPC, when dark patterns subvert this process, businesses risk violating privacy laws such as the Personal Information Protection and Electronic Documents Act (“PIPEDA”) and provincial privacy statutes.
As part of a coordinated effort, the Federal, Provincial and Territorial Information and Privacy Commissioners and Ombuds published a resolution in November 2024 calling on public and private sector organizations to avoid designs and practices that would influence, manipulate or coerce users into making decisions against their privacy interests.
Other regulators are also scrutinizing the ethics behind online design. For example, the Competition Bureau of Canada warns against practices that could mislead consumers, including some deceptive design patterns that foster fake scarcity and urgency, leading individuals to make purchases under false pretenses.
Provincial consumer protection laws similarly prohibit unfair and deceptive business practices, many of which overlap with dark patterns used in digital environments. As the enforcement agency for Canada’s Anti-Spam Legislation (“CASL”), the Canadian Radio-Television and Telecommunications Commission (“CRTC”) also has responsibility for safeguarding against deceptive online marketing practices.
For businesses operating in Canada, understanding and complying with regulatory directions on deceptive design patterns is critical to avoiding legal challenges.
The most common dark pattern identified in the OPC’s review was the use of complex and confusing language in privacy policies. The OPC found that the length and readability of these policies created significant barriers to user comprehension, with many requiring a university or graduate-level reading ability. In response to this guidance, organizations are advised to regularly review their privacy policies to ensure they are clear, concise, and written in plain language. This helps users understand how their personal information is collected, used and disclosed, enabling them to make informed privacy decisions. A more streamlined privacy policy can also avoid making hortatory promises or statements that consumers may claim were not adhered to, particularly in the event of a breach or privacy complaint.
Additionally, businesses can enhance user experience and strengthen compliance with privacy laws by minimizing the steps required to adjust privacy settings, offering just-in-time consent options, and defaulting to the most privacy-protective settings. Adopting these practices not only ensures alignment with Canadian privacy laws but fosters greater transparency and user trust.
For help with your organization’s privacy program, please contact the authors or your trusted Gowling WLG professional.
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