On January 25, 2024, the National Assembly passed a bill targeting so-called “dark patterns,” through a proposed amendment (“Proposed Amendment”) to the Act on the Consumer Protection in Electronic Commerce (“E-Commerce Act”).
“Dark patterns” are interface features on websites and apps that can be used to manipulate users into making decisions that they would not have made had the relevant information been presented transparently. The Proposed Amendment will come into force on February 14, 2025 and notably identifies specific types of features that will be prohibited.
The KFTC had announced an intent to amend existing laws (including the E-Commerce Act) to bolster enforcement against dark patterns, after previously establishing the Guidelines on Self-Regulation for Dark Patterns in July 2023 (distinguishing dark patterns that can be regulated under existing laws from those that would require a separate statutory basis).
With these developments, we expect the KFTC to actively investigate potential dark pattern-related violations and continue to explore legislative amendments to address dark patterns.
Key Provisions of the Proposed Amendment
The Proposed Amendment imposes administrative fines for violating the new provisions targeting dark patterns: (i) requirement for prior consent from consumers when increasing subscription fees or converting free trials to paid services (addressing so-called “hidden renewals;” Article 13, Paragraph 6 of the E-Commerce Act), and (ii) prohibition against the following five types of dark patterns (Article 21-2 of the E-Commerce Act):
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Gradual Disclosure of Costs: Displaying or advertising a lower price on the initial search results page, and then revealing previously hidden costs only at the final step of the checkout process (without justifiable reason).
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Pre-selection of Purchase Options: When asking consumers whether they would like to purchase other products, preselecting items for purchase by default.
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False Hierarchies: Deceiving consumers into believing a particular option (advantageous to the seller or disadvantageous to the consumer) is the only available choice, by displaying the other possible options in a matter that differs significantly in size, shape and color (e.g., smaller font, faded color, etc.).
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Obstruction of Cancellation or Withdrawal: Interfering with cancellation or unsubscription by consumers without justifiable reason by making cancellation/unsubscription difficult or requiring a cancellation/unsubscription process that is different from the sign-up process.
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Repeated Interference: Interfering with consumers’ decision-making process by repeatedly asking them (e.g., through pop-up windows) if they want to change a selection or choice they have already made.
We expect more specific aspects of the Proposed Amendments to be clarified through amendments of the subordinate regulations to the E-Commerce Act, and through official interpretations by the KFTC. These will include, for example, (i) the method of obtaining prior consent or informing consumers of an increase in service fees or free-to-paid conversion, (ii) the definition of “justifiable reason” (for “Gradual Disclosure of Costs” and “Obstruction of Cancellation or Withdrawal”), and (iii) matters specifically delegated to the subordinate regulations (for “Gradual Disclosure of Costs” and “Repeated Interference”).
In the meantime, we expect the KFTC to continue pursuing amendments to other related laws and regulations, as part of its drive to strengthen enforcement against dark patterns. It will therefore be important to closely monitor the legislative and regulatory developments in this space.
