Amazon’s sales terms and delivery ‘dark patterns’ face probe in Poland

If you’ve ever made an Amazon order with a particular seller because the estimated delivery for the item appears to match when you need it, only to be frustrated when a different (later) delivery estimate appears after you’ve completed the payment process, this action by Poland’s competition and consumer watchdog may be of interest: It’s accusing Amazon of misleading consumers over delivery times, product availability, the sales contract and their consumer rights.

The UOKiK is acting on complaints into the ecommerce giant’s practices which it’s been investigating since September 2021. It’s now taken the step of publicly accusing Amazon of misleading consumers — and will proceed to investigate the charges laid out.

If it confirms its suspicion that Amazon is breaching consumer protection rules, the tech giant could face a fine of up to 10% of its local turnover.

Commenting in a statement — which we’ve translated from Polish using machine translation — the UOKiK’s president, Tomasz Chróstny, said:

Consumers make purchasing decisions under the influence of various factors. In addition to the price, it is important that the product arrives within the expected time, and when Amazon suggest’s an offer, they can be convinced that the store will provide it. They have the right to rely on the declarations provided to them on the website and assume that the available functions are not misleading. If consumers knew that placing an order is not yet a purchase, and that the availability of products and the delivery time provided are only estimates, they might not use the services of [Amazon].

The UOKiK’s investigations so far have found Amazon does not treat the placing of an order as a sales contract, despite emailing consumers a confirmation of their order — which shoppers may assume is the conclusion of the sales contract. Instead, Amazon’s terms specify the moment of shipment as the binding sales contract — however the regulator also found the company is not clearly communicating this salient detail to consumers.

In a press release about the proceeding, the UOKiK points out the visual contrast between brightly coloured “Buy now” and “Proceed to checkout” buttons which Amazon displays to nudge consumers to place a order — and the small print provision in its terms of sale stipulating that the sales contract is not actually concluded until the product ships.

Amazon does also show this small print to consumers at the last stage of the purchasing process — but it does this “using a gray font on a white background and placing it at the very bottom of the page, which may require you to scroll down the screen” — meaning it is “hard” to read, in the UOKiK’s view.  

“What really catches the attention of consumers is the purchase-and-contractual “Buy Now” (on the product page) or “Proceed to checkout” (after adding to cart) [buttons] highlighted in bright colors,” the UOKiK writes. “In the opinion of the president of the Office, such wording may suggest that when ordering a product, it is purchased, and the transaction takes place immediately upon payment for the goods.”

So, in other words, Amazon is deploying a classic piece of dark pattern design — which appears to work against consumers’ rights by furthering Amazon’s own commercial interests in maximising orders but keeping its contractual obligations lagging behind consumers’ payments for the goods.

Furthermore, the regulator found that information shown to consumers on Amazon’s platform — regarding product availability and delivery dates — “may not be true”.

“When placing an order, consumers are convinced that they have purchased the product and that the seller is in possession of it. Meanwhile, products marked as available, or those with even a certain number of pieces, may in fact not be in stock or their shipment may be impossible to complete,” it notes in its press release. “Similarly, the times indicated in the delivery messages — on a given day, before a given date, countdown “order within 2 hours 34 minutes” — are indicative. However, consumers do not have the opportunity to find out about this at the stage of placing an order without reading the terms of sale of the website. Only there is information about the estimated nature of the data provided.”

The watchdog is also concerned consumers are not being properly informed about their rights in connection with Amazon’s “Delivery Guarantee” offer — a feature the platform offers for select products and where the delivery date is presented along with information on when the consumer should place the order (i.e. to receive it by the presented date).

If there is a delay to such an order the shopper can contact Amazon to get a refund of any delivery costs. However the UOKiK found information about this consumer right is only shown at the checkout summary stage — or if a user actively clicks through on subsequent links specifying delivery details.

Furthermore, it notes that Amazon does not include information about this right to get a refund in the confirmations it sends them regarding a “Delivery Guarantee” offer order. And if consumers are not informed of their rights they may not know they can apply for a refund — and so may not get what they’re owed.

Amazon was contacted for a response to the UOKiK’s proceeding.

This is not the first time the ecommerce behemoth has faced pushback in Europe over its use of dark patterns to manipulate users of its platform.

Last summer, Amazon agreed to simplify the process required for cancelling its Prime membership subscription service across ecommerce sites it operates in the European Union following a series of complaints from regional consumer protection groups.

The summer before that it was also hit with a whopping fine — of close to a billion dollars — for breaches of the EU’s data protection rules by processing customer data for targeted advertising.

In recent years, the European Commission also laid out a series of antitrust charges against the platform — going on to settle one that had probed its use of merchants’ data, and another related to which sellers’ offers get displayed in a featured “Buy Box”, at the end of last year after the tech giant made commitments to change its practices around use of third party data and how it presents the Buy Box. Although Amazon managed to dodge a fine in this instance (but it could still face one of up to 10% of its global turnover if it’s found to be breaching these commitments which remain enforceable for seven years).

The ecommerce giant has also faced competition enforcement in Italy — where it was fined $1.3BN at the end of 2021 over similar charges to those the European Commission subsequently investigated.

Amazon’s sales terms and delivery ‘dark patterns’ face probe in Poland by Natasha Lomas originally published on TechCrunch