/ Dark Patterns: Sernac Report Warns About Bad Practices in E-Commerce

It is recommended that suppliers review their e-commerce and analyze the use of practices that violate the duty of truthful information and/or data protection.

Macarena Gatica
Alessandri Partner

A few days ago Sernac published a report on some practices used by e-commerce during the cyberday of November 2020.

After reviewing more than 100 websites, it was detected that 64% of the companies apply practices called “Dark Patterns”. These are strategies used by companies on their websites and applications to make people buy or do things they don’t want to do, such as registering and handing over their data.

The report concluded that a significant number of these merchants employ patterns, which the consumer cannot see, to induce them to buy or register, by visually disorienting them, using confusing language, hidden options or false urgencies, among others. Examples of these patterns are the notice that there are only a few units left, or that a certain number of people are viewing the same offer, or the comments of consumers who have previously purchased the product or service. Since we understand that the suppliers were not consulted, the question arises as to how Sernac verified that the information was not truthful.

However, the dark patterns well used with respect to stock information and consumer opinion should be considered as the fulfillment of the supplier’s duty of information. In relation to the techniques used to capture unnecessary personal data, the report gives an example of an online quotation system of a bank that asks for the ID number of the customer to simulate the installment of a consumer credit. Sernac explains that the ID number is sensitive information and that it is not very relevant. However, the ID number is a personal data (not sensitive pursuant to art. 2 of Law 19,628) and the applicable rate is determined on the basis of the consumer’s financial risk, therefore, without the ID number it is difficult to determine an adequate estimate of the installment associated with the quoted credit.

Bill 12,409, which amends the consumer protection law, states that providers of financial products must carry out an analysis prior to a credit operation of the consumer’s economic solvency, in order to be able to comply with the obligations arising therefrom.

The results of this report will serve as input for future experiments to be carried out by Sernac’s Behavioral Economics Coordination; to alert the Auditing Sub-directorate of eventual violations of consumer rights and the Surveillance Committee when alerts related to this matter are received.

We recommend suppliers to review their e-commerce and analyze the use of practices that violate the duty of truthful information and/or data protection. The latter considering the forthcoming enactment of Bill 12,409, which grants Sernac supervisory powers regarding data protection in consumer relations.

Check the full report here.