ACM publishes update to the rules regarding online deception

Businesses are getting better and better at influencing consumers online in a targeted manner in their decision-making processes and purchase decisions. They do so, for example, by using personal data regarding specific preferences and behavior. Persuading consumers to make a purchase is allowed, but misleading consumers is prohibited. And misleading practices still take place. The Netherlands Authority for Consumers and Markets (ACM) has published an update to its Guidelines on the protection of the online consumer, which now include new regulations and recent developments in the digital economy. In its guidelines, ACM also calls on businesses to take their responsibility and ensure that products and services are sold online in a fair manner. ACM has launched an awareness campaign, explaining what is and what is not allowed. Please note that an English translation of the updated guidelines will be released later this year.

The boundaries of online persuasion follow from the statutory rules governing all purchases by consumers. Since 2020, ACM in its Guidelines on the protection of the online consumer has explained how the law is applied to online purchases. Strict rules apply to dark patterns, which are hidden techniques to mislead consumers. In addition, misleading elements can also be built into websites aimed at influencing consumers to do things that run counter to their interests (also known as deceptive design).

At what point does persuasion turn into deception? “Businesses should ask themselves that question if they offer online products or services”, says Edwin van Houten, Director of ACM’s Consumer Department. “People must be able to go online with confidence. They should not feel pressured to make certain purchases. And they should receive honest information. We educate people and businesses, and we also remind businesses of their responsibility. If businesses fail to meet that responsibility, we can impose a fine.”

A much needed update

This update to the 2020 guidelines is much needed, following, among other reasons, recent developments in EU rules and regulations such as the legislative proposal to introduce the directive on the modernization of EU consumer protection rules. This directive contains rules on ranking and personalized prices. In 2024, the new rules of the EU Digital Services Act will come into effect, thereby creating additional obligations with which online platforms must comply. These new rules are already mentioned in the updated guidelines. New topics in the updated guidelines are advertisements, influencers, and the promotion of usage (increased or otherwise) of online services. Please note that an English translation of the updated guidelines will be released later this year.

Several examples of the rules on online persuasion:

• Do not give the impression that consumers need to decide fast if they want to buy something if that is not true. For example, if the offer comes with a countdown timer, then the offer can no longer be available once the timer has reached zero.
• Cancelling subscriptions must be as easy as taking out subscriptions, for example, by ensuring that consumers are able to cancel with just two clicks.
• Do not put consumers on the wrong track with the design of online stores, for example, by ranking search results in a such a way that it is unclear that some businesses pay for higher spots in the rankings.

The digital economy and ACM

ACM ensures that markets in the digital economy function well. People and businesses must be able to take advantage of online markets with confidence. The digital economy is one of ACM’s key priorities. For example, ACM assesses whether or not businesses mislead consumers online or exert undue influence over them. This also promotes a fair competitive landscape for businesses.

Examples of businesses that have adjusted their practices (online or otherwise) following ACM interventions (some of which in cooperation with other European consumer authorities and the European Commission).

• Following ACM actions, Wish bans fake discounts and blocks personalized pricing
• Influencers stop using fake likes and fake followers following warning issued by ACM
• Shopify to take down fraudulent online stores from its platform
• Joint European consumer authorities force TikTok to make changes
• Users must be able to cancel their Amazon Prime subscriptions with two clicks
• ACM orders online store Sneakerstad to comply with consumer protection rules
• Following ACM action, AliExpress adjusts its conditions in favor of consumer

See also:

• Guidelines on the protection of the online consumers (in Dutch) (Please note that an English translation of the guidelines will be published later this year)