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

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

• 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 a subscription
• Making statements, such as “discounts for today only” or “discounts last only until a certain time” even though there is actually no discount or special event
• 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 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 the bases for future regulation and enforcement.

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

• Back in January 2021, the KFTC had already identified dark patterns as a notable consumer policy issue and announced its plans to comprehensively amend the Consumer Protection in E-Commerce Transactions Act (the “E-Commerce Act”) as a means to prevent conduct designed to deceive consumers and increase the responsibility of platform operators.

• In January 2022, 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 the availability of consumer choice and sufficient information for consumers to make informed decisions.

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

• In July, 2022, the KFTC commissioned a study on dark patterns (the “Study on Consumer Protection from Eye Marketing by E-Commerce Companies”) to prepare measures to effectively protect consumers without diminishing normal marketing activities.

In addition, the following dark pattern-related legislations have been proposed to the National Assembly:

• The proposed amendment to the E-Commerce Act that requires the consumer’s consent at the time when goods that used to be supplied free of charge are converted to paid goods. 

• The proposed partial amendment to the E-Commerce Act that prohibits designing, modifying, or manipulating user interfaces (UIs) to interfere with consumers’ reasonable decision-making.

• The proposed partial amendment to the E-Commerce Act that imposes an obligation on e-commerce business operators or mail order sellers to design a user interface (UI) to prevent consumer harm caused by a misrepresentation of the intent to purchase resulting from mistakes made by consumers while navigating the interface.

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 patterns under the existing regulatory framework, including the E-Commerce Act, the Fairness in Labelling and Advertising Act, and the Telecommunications Business Act, or to facilitate voluntary regulation from the business operators.  Therefore, companies should closely monitor the changes in the legislative and regulatory systems and enforcement trends.