ICO and CMA Joint Position Paper on Harmful Design in Digital Markets

Organisations commissioning websites, web designers and developers should note that last month the DRCF (Digital Regulation Cooperation Forum) published an ICO (Information Commissioner’s Office) and CMA (Competition and Markets Authority) joint position paper: “Harmful design in digital markets: How Online Choice Architecture practices can undermine consumer choice and control over personal information”.  

The DRCF is a collaboration between the UK’s four digital regulators: the ICO, the CMA, Ofcom (Office of Communications) and the FCA (Financial Conduct Authority).  

The DRCF’s 2023/24 Workplan, published on 27 April 2023, stated that “The ICO and the CMA will publish a joint position paper on online choice architecture practices that lead to competition, consumer protection and data protection harms.” 

The 42-page joint position paper sets out how online-choice architecture can lead to data protection, consumer and competition harms, and gives examples of potentially harmful practices. Such practices include harmful nudges and sludge, confirm shaming, biased framing, bundled consent and default settings.  

Organisations should review their websites to make sure that they are adhering to the principles set out in the paper and take steps to remediate if they aren’t. 

If any of our clients are interested in discussing harmful design practices and the alternatives available, the ICO and CMA will be holding a stakeholder workshop in the autumn about good design practices for privacy choices online. 

User experience designers, information architects and any other stakeholders interested in online-choice design can register their interest by emailing digitalregulationcooperation@ico.org.uk. 

For further information, please see the DRCF’s news release, the ICO’s news release, and a joint blog from the ICO and CMA.