Nudged or Pushed Too Far? – The Global Movement for Ethical Digital Design
- Brainz Magazine
- Aug 6
- 6 min read
Matching Leanne’s impressive qualifications, which include medical and business degrees from Harvard, are her energy, humour and keen insight. Dr Leanne Elich is an award-winning Sales Psychology and Business Strategist, author, speaker and one of Australasia's most successful Technology Business Executives.
The recent report released in Australia by NSW Fair Trading (3 May 2024) offers a sobering yet necessary insight into the persistent and pervasive use of dark patterns in digital environments. These manipulative design tactics, used to confuse or coerce consumers into decisions they might not otherwise make, are not merely poor practice. They represent a breach of ethical business standards and a growing threat to consumer trust, psychological safety, and informed decision-making. This report sheds light on the silent erosion of consumer autonomy in the digital age.
The psychology behind the pattern
Dark patterns ranging from “hidden costs” and “trick questions” to “forced continuity” and “confirm shaming” exploit the ethics of well-documented behavioural biases:
Loss aversion: Scarcity cues and countdown timers prey on our fear of missing out, prompting impulsive purchases.
Cognitive overload: Trick questions and false hierarchies disorient consumers, diminishing their ability to make rational choices.
Social proof distortion: Activity notifications manufacture artificial urgency and validation through often unverifiable or fabricated user activity.
Framing effects: Confirm shaming reframes inaction as stupidity, guilt, or recklessness.
These are not harmless tactics; they are psychological intrusions that compromise autonomy, erode digital dignity, and damage brand reputation over time.
Why this matters now
As we move further into a hyperconnected, data-driven economy, our decisions are increasingly shaped by interfaces rather than conversations. Every click, scroll, or opt-in box represents a micro-decision, one that can be either guided with transparency or manipulated with trickery. As consumers become more privacy-aware and values-driven, ethical design is no longer a “nice to have.” It is a commercial imperative.
Sixty-eight percent of consumers say trust in a brand influences their purchasing decisions more than price or convenience.
The ACCC's Digital Platform Services Inquiry has already signalled regulatory tightening, and globally, dark patterns have drawn legal consequences under the GDPR and the FTC.
NSW’s intervention signals a shift: manipulative UX is moving from clever to culpable.
Examples cited in the report include:
Hidden costs disguised in checkout flows.
Trick questions that make cancelling subscriptions confusing.
Confirm shaming that guilt users into opting in.
Activity notifications and scarcity cues are designed to create a sense of urgency.
These tactics are often subtle, designed to bypass our conscious reasoning and exploit well-documented psychological biases. And they work. But at what cost?
The neuroscience of manipulation
As a neuroscientist and behavioural economist, I spend much of my career helping organisations ethically apply behavioural science to sales, marketing, and leadership. What the report describes is not “clever UX”; it’s behavioural manipulation.
Let’s be clear: these patterns are not accidental. They’re built on decades of research into cognitive biases:
Loss aversion makes consumers fear missing out on limited deals.
Choice architecture is used to funnel decisions toward the most profitable outcome for the business, not necessarily the best one for the consumer.
Framing effects distort perception by altering how options are presented.
Social proof distortion involves using fake or exaggerated activity to imply urgency or popularity.
These aren’t design flaws; they’re deliberate psychological traps. And while they may increase click-through rates or upsell packages, they do so by undermining the consumer’s ability to make an informed, autonomous decision.
The commercial risk of dark patterns
Businesses may think they’re being “smart” by using dark patterns, but in reality, they are creating risk:
Legal risk: Internationally, regulators are cracking down. The EU’s GDPR, the US Federal Trade Commission (FTC), and now Australian regulators are actively investigating and prosecuting dark pattern use.
Reputational risk: Consumers are increasingly value-driven. Ethical transparency is no longer a marketing differentiator; it’s an expectation.
Commercial risk: Brands that rely on manipulation may see short-term gains but suffer long-term losses in loyalty, referrals, and customer lifetime value.
From dark to decent: What businesses must do
This report is not just a warning; it’s an invitation to lead. Ethical digital design can still be persuasive. Behavioural science offers powerful tools for positive nudging that empower rather than exploit. When used with integrity, science-based nudges can create clarity, reduce friction, and enhance decision-making. Here’s how:
Transparency over trickery: Replace hidden fees with clear, upfront pricing. Let honesty be your differentiator.
Informed consent by design: Give consumers meaningful, visible, and reversible choices.
Reframe with respect: Instead of “No thanks, I prefer to pay full price,” offer opt-outs like “Not today, thank you.” Respect breeds reciprocity.
Empower choice architecture: Guide decisions through clarity, not confusion.
Simplify cancellation processes: Frictionless entry must be matched with frictionless exits. If you need to trick someone into staying, you’ve already lost them.
Positive framing: Encourage action through benefits, not shame.
Offer genuine choice: Avoid false hierarchies and dark defaults. Give customers meaningful, balanced choices that make them feel smart, not manipulated.
The business case for ethical influence
Let’s stop pretending that ethics and performance are at odds. In reality:
Ethical design reduces refund requests, churn, and complaints.
Trust-based messaging increases brand loyalty and willingness to pay.
Empowered customers become vocal advocates, not passive users.
If your platform, process, or pricing relies on confusion or manipulation to succeed, it’s time to reassess. The best brands in the world don’t just sell products; they sell confidence. And that starts with designing for both the brain and the heart.
The global movement
Globally, several regulatory bodies and government agencies are taking action against “dark patterns”, the manipulative design techniques that undermine consumer autonomy. Here's a breakdown of key regulators and their approaches to policing deceptive digital practices:
United States: Federal Trade Commission (FTC)
Position: The FTC is the global frontrunner in addressing dark patterns.
Actions:
Released a comprehensive staff report in 2022 titled Bringing Dark Patterns to Light.
Filed lawsuits against companies like Amazon, Epic Games (Fortnite), and Vonage for deceptive practices such as forced continuity, confusing cancellation flows, and unfair billing.
Considers dark patterns as violations of Section 5 of the FTC Act (unfair or deceptive acts/practices).
Notable Quote: “Firms are using digital dark patterns to trick consumers into subscriptions and ongoing charges they didn’t consent to.”
European Union: European commission & member states
Frameworks:
General Data Protection Regulation (GDPR): Prohibits manipulative consent flows for data collection (e.g., pre-ticked boxes, hard-to-find opt-outs).
Digital Services Act (DSA) and Digital Markets Act (DMA): Ban specific dark patterns and mandate transparency in platform design.
Unfair Commercial Practices Directive (UCPD): Prohibits misleading or aggressive commercial practices, including coercive or aggressive marketing tactics.
National Action:
France's CNIL (data protection authority) fined Google and Facebook for cookie consent dark patterns.
Norway’s Consumer Council published the report Deceived by Design, which has led to pressure for regulatory reform.
United Kingdom: Competition and Markets Authority (CMA)
Focus: Consumer protection and digital market transparency.
Actions:
Investigated the use of urgency cues (e.g., “Only 2 rooms left!”) by travel and hotel platforms.
Published guidance on online choice architecture, warning against pressure selling and misleading defaults.
Strategic Vision: Aims to ensure that “digital markets work well for consumers, businesses, and society.”
Canada: Office of the Privacy Commissioner (OPC)
Focus: Data privacy and consent mechanisms.
Action: Published guidance warning against deceptive consent practices (e.g., obscuring opt-outs).
Legislation: The proposed Consumer Privacy Protection Act (CPPA) would include explicit restrictions on the use of dark patterns in digital consent forms.
India: Ministry of Consumer Affairs & CCPA
Development: In 2023, India’s Central Consumer Protection Authority (CCPA) released draft guidelines explicitly banning dark patterns across e-commerce and digital services.
Prohibited Practices:
False urgency
Confirm shaming
Bait and switch
Forced consent for data
Coverage: Extends to all digital platforms, not just large tech firms.
Australia: ACCC & NSW fair trading
Australian Competition & Consumer Commission (ACCC):
Has flagged dark patterns in its Digital Platform Services Inquiry.
Focuses on misleading design in subscription traps, consent interfaces, and personalised advertising.
NSW Fair Trading:
Recently released a report (May 2024) exposing 10 dark pattern types, calling out deceptive UX tactics and nudges that exploit psychological bias.
Other notables
OECD: Has recognised dark patterns as a global concern, urging international cooperation. New Zealand Commerce Commission: Issued warnings about manipulative online marketing techniques.
South Korea’s Korea Fair Trade Commission (KFTC) investigates digital unfairness, including consent manipulation and misleading pricing cues.
In closing
As a behavioural scientist and advocate for ethical influence, I commend these organisations and regulatory bodies for spotlighting this issue. However, it is now time for businesses, designers, and digital marketers to respond not just with compliance, but with conscience. Let’s build businesses that influence ethically, communicate transparently, and earn loyalty through respect, not illusion.
Let this be the year we turn dark patterns into bright practice.
Bright patterns. Clear ethics. Better business.
If you’d like support in transitioning toward ethical influence, clarity-led UX, or science-backed sales psychology strategies, I’d welcome a conversation.
Dr Leanne Elich
Neuroscientist & Behavioural Economist
CEO, Leanne Elich Consulting
Changing business. One brain at a time.
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Dr Leanne Elich, Business Psychology Strategist
Matching Leanne’s impressive qualifications, which include medical and business degrees from Harvard, are her energy, humour and keen insight. Dr Leanne Elich is an award-winning Sales Psychology and Business Strategist, author, speaker and one of Australasia's most successful Technology Business Executives. Leanne is a pioneering thought leader and sought-after expert in psychology and neuroscience applied to business. Leanne works with companies to empower their ability to ethically influence consumer behaviour. With a PhD in Cognitive Neuropsychology and a catalogue of publications, Leanne was awarded the 2023 - Top 20 Women in Business. Her mission: Changing business, one brain at a time.
