Regulators and consumers alike are growing increasingly concerned with dark patterns in video games.  Children are the most vulnerable to dark patterns as video games are most prevalent in their age group and they may be more susceptible to dark patterns.   

A study by the Singapore Ministry of Digital Development and Information in February 2024 revealed that 47% of Singapore youths aged 10-18 played games every day, most of whom play for at least 2hours each session.

What are Dark Patterns?

Dark patterns, also known as deceptive patterns, are manipulative online design tactics that undermine a user’s decision-making ability by “nudging” users in a particular direction, such as towards a choice or purchase, generally to the benefit of the choice designer.  They influence a broad spectrum of consumer decisions, making it harder for users to make informed choices.

Video games, which thrive on users’ attention and engagement, may lend themselves easily to dark patterns.  Notably, USD 245 million of the USD 520million landmark settlement between the Federal Trade Commission (FTC) and Epic Games was for dark patterns tricking users into paying unwanted charges, which were in breach of the FTC Act for being an “unfair or deceptive act affecting commerce”.  

Certain types of dark patterns are common in or unique to videogames:

• In-game virtual currencies act as a bridge between real money and in-game items, making the actual cost of purchases less transparent.
• Playing by appointment (limited time events), daily rewards, or grind-heavy games with “pay to skip” or “pay to win” mechanics encourage players to spend more time playing than they otherwise would.
• Loot boxes or “gacha” mechanics give players a random chance to acquire in-game items for a price, and are subject to gambling laws in some countries.

However, not all dark patterns are intentionally or maliciously designed – some arise unintentionally as designers meeting requirements without considering their effects on user behaviour.  However, given the impacts on users, some jurisdictions have deemed such manipulative tactics worthy of regulation.

Regulation of Dark Patterns in Singapore

Singapore’s Consumer Protection (Fair Trading) Act 2003 (CPFTA) allows consumers to seek civil redress against unfair practices by suppliers.  An unfair practice includes any act or omission that could reasonably mislead or deceive a consumer.  While dark patterns may fall under this definition, there are no known enforcement cases so far.

In addition, the Competition and Consumer Commission of Singapore has expressed its intent to act on dark patterns to strengthen consumer protection, especially on e-commerce websites.  It remains to be seen whether this will extend to other industries such as the video game industry.

International Developments 

Apart from the Epic Games’ USD 245 million settlement, the FTC released a report on the use of dark patterns across a wide variety of industries and contexts, such as e-commerce, cookie consent banners, children’s apps and subscription sales.   At the state level, the California Privacy Rights Act regulates dark patterns by not recognising consent obtained through dark patterns, among others.

In the UK, the Competition & Markets Authority released a Discussion Paper on Online Choice Architecture in 2022 on how digital design can harm competition and consumers, spotlighting the use of dark patterns.  The UK advertising regulator has applied the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing to find certain online retailers in breach for using dark patterns.  The UK Children’s Code issued by the Information Commissioner’s Office also prohibits the use of “nudge techniques” to lead or encourage children to provide unnecessary personal data or turn off privacy protections. 

In the EU, various laws address dark patterns.  For instance, the Digital Services Act prohibits online platforms from using dark patterns to distort or impair users’ ability to make free and informed decisions.  The Artificial Intelligence Act prohibits AI systems from employing subliminal, manipulative or deceptive techniques that impair decision-making.  Additionally, the EU Commission is currently discussing a new Digital Fairness Act to tackle harmful online practices, including dark patterns, addictive designs and exploitative advertising.

Conclusion

The issue of dark patterns is a complex matter that straddles legitimate purposes and unfair practices.  Gaming companies should ensure that their digital interfaces promote informed decision-making and follow ethical best practices, conduct audits and reviews to identify dark patterns and ensure compliance with applicable regulations against manipulative tactics. 

For More Information

OrionW regularly advises clients on media and entertainment law matters.  For more information about Singapore media and entertainment law, or if you have questions about this article, please contact us at info@orionw.com.  

Disclaimer: This article is for general information only and does not constitute legal advice.