- The Concept of Dark Commercial Design (Dark Pattern)
With digitalization, advertising has become a tool that directs consumer behavior not only through content but also through design choices. In recent years, discussions have increasingly focused on the fact that certain interface designs used on websites, mobile applications, and digital sales platforms are constructed in a manner that implicitly undermines consumers’ free will and manipulates their decision-making processes.
At the center of these discussions are “dark commercial designs” (dark patterns), which particularly pose a risk of misleading consumers in online advertising and sales processes. As a concept, dark commercial designs are defined as interface practices that are deliberately designed to steer consumers toward a specific behavior, are often difficult to notice, and weaken the consumer’s rational decision-making process. For example, pre-ticked consent boxes that appear without the consumer’s consent when adding a product to the cart, expressions such as “last product” or “last 5 minutes” that create an artificial sense of urgency, and complex interfaces that turn the subscription cancellation process into a labyrinth are considered within this scope.
In Türkiye, such practices fall under the supervision of administrative authorities, primarily the Advertising Board. In the Board’s decisions, not only the content of the advertisement but also the manner in which the advertisement is presented and the user interface design are subject to evaluation.
- Applicable Legislation for Dark Commercial Designs and Unfair Commercial Practices
The legal status of dark commercial designs is placed on a clear legal footing under the Regulation on Commercial Advertising and Unfair Commercial Practices (“Regulation”). Under the legislation, for a commercial practice to be deemed unfair, it is considered sufficient that it does not comply with the requirements of professional diligence and that it significantly distorts the economic behavior of the average consumer with respect to a good or service.
The critical threshold here is the reduction of the consumer’s ability to make an informed decision. The Regulation explicitly considers it unlawful for a consumer to be included in a transaction, which they would not normally be a party to, through design manipulation. In this regard, Article 22 added to the list of misleading commercial practices annexed to the Regulation has specifically classified as unfair practices those methods that negatively affect the consumer’s freedom of choice through guiding interface designs, options, or expressions used in the online environment. This legal framework constitutes the most concrete indication that any form of “interface trap” contrary to the principle of good faith is subject to sanctions.
Even if such designs do not always contain explicitly false information, they may influence the consumer’s will through the manner in which information is presented, the positioning of options, or the deliberate complication of the user flow. To the extent that these practices restrict the consumer’s freedom of choice, they become subject to legal scrutiny.
- Dark Commercial Designs in Light of Advertising Board Decisions
The evaluations of the Advertising Board are primarily based on the provisions of the Consumer Protection Law No. 6502 and the Regulation on Commercial Advertising and Unfair Commercial Practices. Within this legal framework, for an advertisement to be considered unlawful, it is not strictly necessary for it to contain a direct falsehood; a violation of the principle of good faith and the distortion of the consumer’s economic behavior are deemed sufficient.
The main criterion taken into account in the Board’s practice is the effect of the advertisement on the average consumer. Consideration is given to whether the average consumer is misled due to the manner in which the advertisement is presented, whether their decision-making process is distorted, and whether their economic behavior is affected as a result.
In this context, the Advertising Board evaluates not only texts and visuals, but also the placement of buttons within the interface, the psychological effects of the colors used, font preferences, and whether the transaction flow is made more difficult to the detriment of the consumer, as a whole. Accordingly, dark commercial designs may be addressed directly within the scope of misleading advertising or unfair commercial practices.
In recent years, in the evaluations carried out by the Advertising Board, not only advertising texts but also the interface design through which the advertisement is presented, button placements, and user guidance have been decisive in determining unlawfulness.
In particular, methods frequently encountered in subscription services, such as “hiding the cancellation button” or “highlighting the confirmation button with brighter colors,” are classified by the Board as unfair commercial practices.
For example, in the Advertising Board’s decision numbered 2024/5159 regarding “Spotify,” despite the offer of a “1-month free trial,” the requirement for consumers to enter credit card information and the fact that cancellation processes were designed to be significantly more complex compared to initiating membership were found to be unlawful. Similarly, in the decision numbered 2024/5161 regarding “YouTube Premium,” the pre-selection (default) of subscription types and the presentation of the option to reject the offer through a small “X” icon hidden in the corner of the screen were characterized as dark design practices. In these decisions, the Board imposed suspension sanctions, stating that the expectation created by the promise of a “free trial” was manipulated for the average consumer and that the consumer’s right to withdraw from the transaction was made more difficult through design-based obstacles.
Statements made by the Ministry of Trade also indicate that the Advertising Board is particularly focusing on design traps related to subscription services. At this point, it should be noted that dark commercial designs are not evaluated merely as marketing or design preferences; rather, they are treated as practices that directly give rise to legal liability.
Dark commercial designs are no longer regarded as a gray area in the fields of digital advertising and e-commerce. Advertising Board decisions clearly demonstrate that consumers must be protected not only against false information but also against misleading design practices. In this new era, it has become a necessity for advertisers, e-commerce platforms, and digital service providers to work not only with marketing and user experience (UX) experts, but also with lawyers specialized in information technology and consumer law when designing digital interfaces. The need for marketing, software, and legal teams to work together by approaching design processes from a legal perspective is steadily increasing.
The approach of the Advertising Board reveals that the principles of transparency and honesty in digital advertising must be observed not only in discourse but at every stage of design.
Attorney At Law Ezginaz Çalışır