Auckland University’s legal academics research how ads can exploit those vulnerable
The University of Auckland has announced that a new book titled Asia-Pacific Contract Law, Volume 1: The Digital World in Context, available this October, will address manipulative digital advertising, vulnerable consumers, and New Zealand law.
In a chapter titled “Manipulative Advertising and Vitiating Factors” in the forthcoming book, Professor Jodi Gardner and Dr Joshua Yuvaraj will examine:
Gardner and Yuvaraj, who are law academics at Auckland University, researched “vulnerability exploitation,” a complex dark pattern that identifies potentially vulnerable people, including by tracking their search habits and exploiting their vulnerabilities via pop-ups or targeted ads.
“The harm in question doesn’t come from the content of the advertisement itself, but from the fact that it purposefully targets people who are vulnerable and may agree to purchases not in their best interests,” Gardner and Yuvaraj wrote.
Through case studies, the legal academics will explain how manipulative advertising can target three vulnerable groups:
Gardner and Yuvaraj emphasised the importance of enhanced consumer protections, given these groups’ increased vulnerability to dark patterns.
Yuvaraj discussed the manipulation technique involving “loot boxes”, which players of online games can open without knowing beforehand what “loot” or features they will get.
One gamer in New Zealand shelled out approximately $16,000 after becoming “addicted” to the excitement of loot boxes. However, the definition of gambling currently does not include loot boxes.
Gardner and Yuvaraj noted that the Fair Trading Act 1986 will likely need to regulate loot boxes and other in-app purchases. They wanted the government to:
To further improve the law, the researchers suggested expanding court-developed safeguards to cater specifically to modern, app-based, and standard-form contracts.
According to Yuvaraj, courts can intervene if a consumer’s vulnerability or lack of meaningful choice renders them unable to consent to or comprehend a contract’s or transaction’s consequences. Examples include instances where a business should be more attuned to somebody’s vulnerability or where a power imbalance exists.
“Given how quickly new technologies are developing that can cause harm to people, such as AI deepfakes, it’s critical to ensure New Zealand’s legal framework is set up to protect the most vulnerable members of society,” Yuvaraj said.
The university’s news release explained that dark patterns aim to confuse consumers, prevent them from expressing their actual preferences, or manipulate them into taking specific steps.
The news release described the following types of dark patterns, which can influence purchases, as unfair to all consumers but straightforward to identify and regulate: forced action, obstruction, sneaking items into baskets, and scarcity or urgency messaging.
In the US, Meta, YouTube, and other social media giants worldwide have been on trial to face allegations that the design of their apps endangers young individuals.
Professor Gardner is the Brian Coote chair in private law at Auckland University.
On the other hand, Yuvaraj is a senior lecturer and co-director of the New Zealand Centre for Intellectual Property at Auckland Law School.
