The companies that get their wrists slapped by media regulators tend to be tiny. They either operate believing they and the tactics they employ are too small beer to get noticed – only to find out otherwise – or they lack the internal resource to ensure their outbound comms are all strictly compliant.
No such excuses for the big boys, who are lawyered up the yahzoo and have no reason not to check every pixel published under their name. Which is why made headlines last month when two household name brands, Nike and Sky, were found to have run afoul of the referees for use of practises known as ‘dark patterns.’
Firstly, the Advertising Standards Authority found that an advert for a free trial for Sky’s streaming subsidiary Now TV failed to suitably inform consumers “would auto-renew at a monthly charge unless cancelled.” In their defence, NOW argued that “the webpage prominently included all significant conditions relevant to the 7-day free trials.” The ASA saw things differently, insisting “ads must make clear whether a paid subscription started automatically after the trial unless cancelled,” and requiring the company pull the creative.
Sports apparel giant Nike, for their part, were found to have breached the code on misleading advertising in December 2023, with an ad on X that offered a trainer for £26, but which was then only found to be available in UK child sizes 3 to 6.
The regulator said:
Because children’s shoes were typically cheaper than adult shoes, and were exempt from VAT, we considered that the average consumer would not regard £26 as a heavily discounted price for children’s trainers, and therefore would understand the price referred to a pair of adult trainers. We therefore considered that the consumer would click through to the website and expect to be able to purchase a pair of adult trainers at the advertised price.
The company was told not to show the ad again.
Wider implications for Online Choice Architecture
Taken in isolation, these rulings are relatively insignificant, however they fit within a wider body of study that we can expect to see more of in the coming months and years. If you’re not yet familiar with the phrase “online choice architecture” it’s worth boning up.
In late 2022 the Competition and Markets Authority‘s newly created Digitial Markets Unit published a report called Online Choice Architecture: how digital design can harm competition and consumers.
‘Choice architecture,’ said the executive summary, is a “neutral term” which describes the parts of a website which, “deliberately or unintentionally, leads us towards certain decisions and actions.”
“There is growing recognition,” said Amelia Fletcher, Senior Independent Director of the organisation, “that despite the huge range of choice available online – and to some extent because of it – consumers’ purchasing decisions can be substantially influenced by the way in which choices are presented.”
It remains in its infancy, at least as far as the authorities are concerned, but it’s clear that coming down the track will be a heavier expectations that brands will inform and influence but not manipulate consumers into acting against their interests.
As advertisers you need to stay on top of that, but also as marketers working with brands, to ensure they remain on the side of the consumer. Even if the regulators don’t come knocking there are good reasons for that.
