The Advertising Standards and Authority (ASA) regulatory board has ruled against Nike and Sky for misleading customers through “dark pattern” strategies.
The board deemed their ads deceitful and intended to trick customers into inadvertently spending money.
Complaints against Nike were issued after an ad on retail partner The Sole Supplier’s X account promoted a pair of sneakers at a reduced price, prompting users to click through, only to discover that it was for a children’s size.
In the case of Sky, the ASA voiced criticism over how the subscription options were presented to users signing up for the platform’s NOW TV service.
The investigations into both companies were part of a broader initiative on “online choice architecture (OCA)," conducted by the advertising watchdog.
"Dark pattern" techniques are essentially misdirection schemes that aim to deceive customers into taking an uninformed action. Examples include creating a false sense of urgency to increase product sales or publishing fake reviews to win trust.
While these practices are illegal in many countries, including the UK and the US, dark patterns still prevail across the highly unregulated online space.
The Case Against Nike
The controversial ad featured a pair of fashionable black Nike trainers set against a textured white backdrop with the caption: “Now just £26 at Nike!” To emphasize the deal, the exploding head and black heart emojis were used.
The ASA ruling strictly pointed out that it led customers to believe that the markdown was for regular adult-sized shoes. However, when customers clicked the accompanying link, they were directed to the product page of children’s shoes.
“We noted there was nothing in the ad to indicate to consumers that the trainers were intended for older children or that they were available in limited adult sizing, nor were there any visual cues, such as a sense of scale, to indicate the smaller size of the shoes.
We, therefore, considered that consumers would rely on their own assumptions when interpreting the ad and, in the absence of any information to suggest otherwise, we considered most consumers would reasonably assume that the trainers were for adults,” explained the ASA board.
The ASA noted that since children's shoes are generally cheaper and VAT-exempt, consumers would likely assume the £26 price was for adult trainers, not children's.
Nike responded to the allegations by stating that the ad was created and posted by The Sole Supplier without its involvement or oversight.
Nike also argued that the ad wasn't misleading, as a reasonable consumer would expect limitations like restricted size availability, but the ASA rejected Nike’s defense, banning the ad on all digital platforms.
A Lesson from Sky
The investigation into Sky was initiated over concerns that their free trials were automatically added and would renew with a monthly incurring fee unless canceled within the trial period.
NOW TV, a subscription streaming service operated by the Sky Group, was the entity providing these free product trials for new subscribing members.
When joining the platform, members could choose between “Entertainment Cinema and 6 Month Saver,” which offered a one-month free Boost subscription, and “Entertainment Fully Flexible,” which offered a 7-day free trial of Cinema and Boost products.
While the page detailed the terms of each subscription package, the ASA took issue with the fact that a smaller font size and less prominent font color were used to inform customers that the subscription would auto-renew once the trial had ended.
“We considered that, because the text was placed away from the references to the free trials and below the button to proceed in the consumer journey, consumers were more likely to overlook the significant conditions of the trials.
We considered the presentation of such text made it significantly less prominent to consumers and increased the likelihood that consumers would miss that information,” as stated in the ASA ruling.
Following the ASA ban, Sky adjusted its subscription pages to provide clearer information on their terms and agreement.
Taking accountability a step further, Sky began testing its UX design and customer journeys to improve decision-making and the overall platform experience.
As digital marketing and advertising continue to evolve, businesses must prioritize transparency and ethical marketing practices to not only avoid regulatory repercussions but also foster customer trust and loyalty.
