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Expected Strengthening of Regulation of Dark Patterns


Amid the expansion of online transactions, there has also been a rise in the use dark patterns on websites and smartphone apps, which allow companies to trick consumers into making purchases through deception (e.g., regarding price, transaction terms, product information).  Following recent initiatives on this issue by foreign regulators, relevant agencies in Korea have started looking into strengthening regulation of dark patterns.

While there is no clear definition of dark patterns, in general, the following conduct are considered to be dark patterns, and recently there has been an increase in awareness of the need to strengthen consumer protection against dark patterns in online transactions.

  • Rendering buttons for subscription cancellation, transaction cancellation or refund request in a color that is hard to notice (e.g., grey)

  • Designing the website/app in a way that makes it difficult to find the procedure for subscription cancellation or requires users to go through a complicated process to cancel subscription

  • Making statements, such as "discounts for today only" or "discounts last only until a certain time" even though there is actually no discount

  • Automatically charging users for services when the free trial period expires without clearly informing the users when the first charge occurs and the amount that will be charged

The new Yoon Administration and the Korea Fair Trade Commission (the "KFTC") have mentioned the need and importance of regulating dark patterns and are working on preparing bases for future regulation and law enforcement.

  • The Korea Consumer Agency conducted a market survey of usage of dark patterns on 100 popular apps and announced that dark patterns were detected on 97 of the 100 apps (June 2021).

  • The KFTC mentioned dark patterns as a notable consumer policy issue and announced that it plans to comprehensively amend the Consumer Protection in E-Commerce Transactions Act ("E-Commerce Act") as a means to prevent conduct designed to deceive consumers and increase the responsibility of platform operators (January 2021).

  • The KFTC reorganized its former ICT Task Force into the Digital Markets Response Team, and within it, created a new Digital Consumer Subdivision that aims to monitor and address new types of conduct designed to deceive consumers (e.g., use of dark patterns), and ensure availability of consumer choice and sufficient information for consumers to make informed decisions (January 2022).

  • The 20th Presidential Transition Committee announced that as part of its 110 major tasks, the new administration will focus on establishing fair trading in the platform sector by, among others, proactively correcting unfair conduct designed to deceive consumers (e.g., dark patterns and false reviews) (May 3, 2022).

In light of these developments, we expect the KFTC and other regulatory agencies in Korea will continue to make efforts to regulate dark patterns more actively.  However, as the concept of dark patterns is relatively new and without a universally accepted definition, there is not yet a clear guideline in Korea on how to classify the different types of consumer harm caused by dark patterns.  Accordingly, it seems that the agencies will initially try to regulate dark patters under the existing regulatory framework, such as the E-Commerce Act, the Fairness in Labelling and Advertising Act, and the Telecommunications Business Act.  Therefore, companies should closely monitor the agencies' enforcement trend.

[Korean version]