Digital Platform Services Face Consumer Law Scrutiny

JD Supra Antitrust

Published March 27th, 2026

Detected March 28th, 2026

Summary

The Australian Competition and Consumer Commission (ACCC) is increasing scrutiny on digital platform services regarding consumer law, focusing on design choices and user journeys rather than just marketing. In-house counsel should address potential unconscionable conduct and misleading practices arising from platform design.

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What changed

Digital platform services in Australia are facing heightened legal and regulatory scrutiny from the ACCC, particularly concerning consumer law. The focus has shifted from overt marketing claims to the implications of design choices, algorithms, and user journey management, which can lead to unconscionable conduct or misleading practices. The ACCC's 2025 Digital Platform Services Inquiry and ongoing regulatory focus highlight risks associated with design elements that exploit consumer dependency, create information asymmetry, or make exiting services difficult.

In-house counsel for digital platforms must proactively assess their services for potential consumer law violations. This includes stress-testing for unconscionable conduct stemming from systemic design choices and reviewing pricing architecture, disclosure timing, and 'drip-pricing' practices to avoid misleading consumers. The potential for class action lawsuits is also a significant risk, making a thorough review of platform design and consumer interaction crucial for compliance.

What to do next

Review platform design for potential unconscionable conduct related to user dependency and information asymmetry.
Audit pricing architecture and disclosure timing to ensure compliance with misleading or deceptive conduct provisions.
Assess the ease of exiting services and the clarity of transaction currency and cancellation fees.

Penalties

Penalties have been imposed on companies for misleading pricing and cancellation fee disclosures.

Source document (simplified)

March 27, 2026

Digital platform services: Four Consumer Law Pressure Points That In-House Counsel Shouldn’t Ignore

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[co-author: Michael Vamiadakis]

Digital platform services are now firmly embedded as part of the essential infrastructure for participation in the modern Australian economy. From productivity software and online marketplaces to social media and entertainment, and even connecting into essential government services, these platforms shape how consumers engage, transact and make decisions.

It should therefore come as no surprise that digital platforms are coming under increasing levels of legal and regulatory scrutiny. However, the specific ways in which legal and regulatory issues fall to be considered in this context may not always be obvious. As the ACCC has made clear, including through its 2025 Digital Platform Services Inquiry and more recent confirmations that digital markets are a continuing key point of regulatory focus, some of the most acute legal and regulatory risks no longer arise in the context of overt statements being made to consumers but rather in design choices, decision-making around user journeys and subliminal behavioural reinforcement strategies.

Against that background, this article highlights four consumer law pressure points that in-house legal teams should be stress-testing now.

Unconscionable conduct and systemic platform design

Unconscionable conduct has traditionally been associated with vulnerable customers or sharp sales practices. However, both the statutory and societal frameworks underpinning this area of law have evolved such that that the real potential for exposure to an unconscionable conduct claim is much broader than this association would suggest. Indeed, the High Court has now confirmed that unconscionable conduct can arise from the removal of safeguards in a system, even without a specific intention to exploit, where the consequences are reasonably foreseeable at the time of the conduct in question. 1

Against this backdrop, digital platform services appear particularly susceptible to being scrutinised for evidence of systemic unconscionability. For example, platforms that use design elements, algorithms or behavioural reinforcement tools to exploit consumer dependency, create or exploit an information asymmetry, or make exits unreasonably difficult, would all seem to be at risk of attracting these types of claims. Evidently, the ACCC is already alive to this. In addition, having regard to the ubiquitous reach of some digital service platforms, we would expect unconscionable conduct claims that are structured around system design to be particularly attractive for class action plaintiff firms.

Misleading or deceptive conduct beyond marketing claims

Australian consumer law has long prohibited misleading or deceptive conduct. However, the risks to be considered in this space have moved well beyond the words and images that are visible to consumers when engaging with products and services.

To illustrate, pricing architecture and the timing of crucial disclosures can mislead, even where end-statements are technically correct. For example, recent penalties have been imposed on companies offering 2-sided networks for failing to specify the transaction currency up front and for incorrectly stating that cancellation fees would apply. The ACCC is also focussed on what it calls ‘drip-pricing’, where the full cost of the product is not shown up-front.

Digital service providers ought to be aware of the need to review their customers’ beginning-to-end digital journey. Legal risks can arise from how options are presented (particularly when a customer first downloads an app or engages with a digital service), when key information appears, and whether consumers can reasonably understand the actual cost of what they are buying. Particular risks can be predicted in the context of managing digital subscriptions and associated cancellation options (referred to by the ACCC as ‘subscription traps’), as well as when the customer may be subject to scrutiny or surveillance that they may not understand (such as geo-location and data sharing).

Dark patterns and choice architecture under scrutiny

The terminology of ‘dark patterns’ is often used to describe deceptive design or a choice architecture which leaves consumers in the dark as to their options or leads them to make acquire services or accept conditions they would not otherwise have acquired or accepted. Such patterns are now at the centre of regulatory enforcement, with the ACCC raising this as a new enforcement priority in recent weeks.

The ACCC’s recent proceeding against Microsoft over its Microsoft365 subscription charges is one example of how the risks in this area can manifest. The regulator has alleged that consumers were steered toward higher-priced plans by concealing cheaper (i.e. the default, free version) behind a cancellation pathway. 2

This form of choice architecture is designed to influence consumer behaviour in a manner which is arguably misleading or deceptive. If proposed unfair trading practice reforms proceed, this would become unlawful in its own right. 3

Digital service providers must be acutely aware of the design of their user experience interfaces when engaging in purchases. A legal review which stops at the terms and conditions, without interrogating interface design, will miss this emerging risk.

Addictive design and behavioural harm

A further issue lies in the addictive nature of apps and platforms, particularly in the context of gaming, social media, and content services.

Features such as an ‘infinite scroll’, autoplay, streaks, and ‘rewards’ are now generally recognised as driving prolonged engagement for extended periods of time. While Australian courts have not yet squarely addressed “addictive design”, recent ongoing test cases overseas suggest this will not remain merely a theoretical concern for long. Where addictive features lead consumers to spend more time or money than intended, arguments around unfairness, misleading conduct or unconscionable conduct can be expected to follow.

| ### Looking ahead

The common legal thread across these pressure points is that there is an increased legal and regulatory risk arising from product and design decisions. The ACCC’s sustained focus on digital platforms signals that enforcement will continue to evolve alongside technology.

For in-house lawyers, this means it will be crucial to not just focus on preparing legal terms and conditions and conducting an advertising review before publication. Rather, in-house layers will need an earlier engagement with product teams, deeper collaboration with designers and engineers regarding user experience, and a willingness to interrogate how platform choices affect real consumer behaviour.

In the digital economy, compliance with consumer laws should squarely be considered as a core part of responsible platform governance. And the core question to be asked by any legal, compliance and design teams working with digital service platforms should be “would we be comfortable defending this design choice before a regulator or court?” |

Footnotes

Productivity Partners v ACCC [2024] HCA 27 [66].
ACCC Media Release, Microsoft in court for allegedly misleading millions of Australians over Microsoft 365 subscriptions, available at: https://www.accc.gov.au/media-release/microsoft-in-court-for-allegedly-misleading-millions-of-australians-over-microsoft-365-subscriptions
Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026 (Cth). [View source.]

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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