In a judgement dated 11 February 2025 – 15 O 287/24, the Regional Court of Berlin II dealt with dark patterns in detail.
Dark patterns is a term for user interfaces that are designed to prompt customers to make decisions that they would not normally have made. They have caused a stir from time to time in recent years, but are also particularly widespread in online retail. In everyday life, you have inevitably encountered a dark pattern yourself. Confirmation shaming (“No, I won’t take advantage of a premium subscription”), countdowns or three instead of one click required to deactivate advertising cookies are all dark patterns that are intended to induce a different decision instead of the subjectively desired one. The Regional Court of Berlin II dealt with the assessment of these behaviours under unfair competition law.
A. Facts of the case
The subject of the proceedings was an online shop that could be said to offer a best-of of the most popular dark patterns in online sales. If you wanted to place an order via the shop, you did not get from the “Order now for a fee” button to the payment processing without detours, but instead had to click through several intermediate pages on which you had to add further products to the shopping basket. These intermediate pages had a countdown that did not change anything and contained warnings that you should not leave the page “to avoid being charged twice”.
The option to add the additional product to the shopping basket (“Yes! Add to order now”) was graphically highlighted with a large red button, while the simple text “No, thank you. I decline this unique offer…” had to be clicked to decline.
If you overlooked this option and scrolled down the order in search of the continuation, the offer appeared again, this time the button was even more sharply worded “No, thank you. I’ll pass on this unique offer and gladly forego the valuable sales and visibility for my company…”
Once you had made it past this parkour, you had to confirm a declaration of consent formulated as information about the expiry of the right of cancellation.
B. Judgement of the LG Berlin II
The plaintiffs – the Federation of German Consumer Organisations – objected to almost every step of the ordering process in one form or another during the proceedings. The expiry of the right of cancellation was simple: this was clearly misleading information. In the case of a distance selling contract for a printed book, as in this case, the right of cancellation naturally does not expire immediately but, as with all purchased goods, 14 days after delivery (§§ 355 Para. 2, 356 Para. 2 No. 1 lit. a) BGB).
The countdown was also subject to a clear legal regulation: According to No. 7 of the Annex to Section 3 (3) UWG (so-called black list), untrue information about the time limit of an offer is always unfair. In this case, it was not the fact that there was a countdown at all that put the consumer under pressure that was the online shop provider’s downfall, but rather that the countdown did not correspond to the truth, as its expiry did not cancel the offer. Interestingly, it remains to be seen how the countdown would have been assessed if it had been true.
However, the court conclusively assesses the entirety of the ordering process as an unauthorised aggressive commercial act by means of undue influence pursuant to Section 4a (1) sentence 2 no. 3 UWG. The court assumes that the start of the ordering process in the specific individual case established a position of power of the trader vis-à-vis the consumer. In particular, it is based on the exploitation of a financial predicament (risk of “double debiting”), which is intended to prevent the consumer from leaving the site. Within this predicament, the consumer is now forced twice to select a link that is not graphically emphasised, which is also manipulatively formulated at the top and the countdown is running down. Taken together, all of this leaves no room for assuming a permissible sales design from the point of view of the LG Berlin II.
C. Assessment
The judgement shows that the courts also have an eye for developments in online sales. The deciding chamber of the Regional Court of Berlin II dealt in detail with the concept of dark patterns and made a comprehensible legal assessment. However, it took the path of least resistance, which is why the ruling offers little transferability or even generalisability. Instead of legally assessing the individual dark patterns in isolation, the LG Berlin II – with the exception of the countdown, which is obviously on the blacklist – only assessed the dark patterns in their entirety in accordance with the UWG. This leaves open how the case would have turned out if one of the elements had been missing. Conversely, the court does, however, point out at various points that offering additional benefits during the ordering process does not necessarily constitute undue influence in itself. Ultimately, the most significant factor here was probably the repeated increase in pressure during the ordering process, in particular through the warning about the threat of a “double debit”.
D. Practical tip
Even if the judgement will not be transferable 1:1, it offers some practical guidelines. Particular care should be taken with the design of additional offers and sales promotion measures in the ordering process in view of the findings on a pressure situation from the start of the ordering process. Here, otherwise standard designs can quickly become anti-competitive due to the interplay with the printing situation. In any case, the judgement shows that the transition from clever UI design to anti-competitive dark pattern can be fluid and requires a thorough legal review, and this is always better done preventively than in court proceedings!