New Zealand’s Fair Trading Act dates back to the mid-80s. It hasn’t done badly in those 40 years. Businesses are always going to push the edges of what’s acceptable and the Act remains fit for purpose for dealing with the most common forms of misleading and deceptive conduct: Products representing they are New Zealand made when they’re actually from somewhere else, traders putting up the price of items right before claiming they’re on sale, small print altering the main message of an advertisement – that sort of thing. Let’s call that “old-skool” misleading conduct.
Of course, by definition, if there is an old-skool, there must be a “new-skool”. Here is where the Act begins to show its age.
In July Consumer NZ hosted Chandni Gupta, Deputy CEO of the Consumer Policy Research Centre (CPRC) in Melbourne at an event in Wellington sponsored by law firm Cuncannon.
Gupta is an international expert on the topic of “dark patterns”. Dark patterns cover a range of practices used mainly (but not exclusively) in digital ecosystems to manipulate users into making decisions that benefit businesses to the detriment of the consumer.
The most common and despised example of a dark pattern is the subscription trap, where a business makes it so difficult for a user who wants to unsubscribe from their service to navigate their way through the maze of screens and deceptive design that they give up and just keep their subscription. This dark pattern is also known as the Hotel California – where you can check out, but you can never leave.
German company Hello Fresh is a notorious example, as this video featuring Consumer NZ staff demonstrates. Hello Fresh was the proud recipient of the “Unsubscribe Impossible” award in Consumer NZ’s 2025 Yeah Nah awards and also found itself on the wrong end of a Commerce Commission prosecution the same year – although importantly, the Commission’s prosecution was not in relation to the subscription trap, because it’s not illegal! Yet.
Other examples of dark patterns include hidden fees added at the checkout when you’re buying concert tickets, false hierarchy – where users are presented with options where the most expensive or privacy intrusive options are emphasised, and scarcity cues like “selling fast” or “only three left at this price”. These dark patterns are all prevalent in New Zealand, and although they’re legal, most consumers would agree they feel unfair and a bit sleazy.
It’s illustrative to compare the online and offline worlds to highlight the difference between what users are expected to tolerate online and what would likely be illegal if attempted in a bricks and mortar business. Imagine if every time you entered a physical shop the staff began piling up boxes in front of the door to make it difficult for you to find your way out again – you’d probably call the police, yet online businesses can behave in this way (in New Zealand) and manipulate you into paying for subscriptions you no longer want, with apparent impunity.
These practices have become normalised, particularly in markets with low levels of genuine competition (of which we have no shortage in New Zealand). Users have no option as there is either no competitor to switch to, or all the participants in an industry use the same techniques.
The Australians don’t think this is good enough. Gupta and the CPRC have been at the forefront of advocacy in Australia for an update to the Australian Consumer Law to introduce a prohibition on unfair business practices. Dark patterns are the main focus of the new provision, however it applies offline as well and it will be interesting to see what types of offline conduct get captured as the law comes into force next year.
Closer to home, the Government in Aotearoa has not signalled any intention to enact a similar extension of the Fair Trading Act, even though consumers are losing money, trust and suffering emotional harm at the hands of businesses using dark patterns.
For further information on the consumer impact of dark patterns you can read Consumer NZ’s 2025 report Invisible Influence here.
