Manipulating, Fast and Slow: The Law of Non-Verbal Market Manipulations
48 Pages Posted: 6 Aug 2015 Last revised: 17 Oct 2018
Date Written: August 4, 2015
Consumers make purchasing decisions in various markets every day. Contrary to common belief, such decision-making is often not the result of deliberate analysis of information or of rational thinking. Rather, it is frequently based on feelings, sensations and intuition. Purchasing decisions are not made in a vacuum and are regularly influenced by sellers’ manipulation and selling tactics.
It is well documented that people receive a substantial part of the information they possess via non-verbal communication. One of the most alarming aspects of this reality is that consumers are mostly unaware of non-verbal cues and the ways they can influence them. Therefore, consumers can hardly correct their mistakes and protect themselves against such influence. This stands in sharp contrast to the increasing efforts invested by marketers in employing non-verbal marketing methods.
Despite the enormous impact of non-verbal communication on consumers’ purchasing decisions, current law neglects to address the encoding and decoding of wordless cues exchanged between consumers and businesses. Instead the law mainly focuses on defending the public against misleading verbal information. This opens a challenging gap between the law’s intention to protect consumers from deceptive practices and its ability to do so effectively; this contributes to a false consciousness in consumers of proper protection. It provides consumers with an artificial sense of effective legal protection while leaving them exposed to far more sophisticated manipulations of which they mostly unaware.
Non-verbal manipulations are a robust phenomenon, extensively employed by sellers who are well versed in marketing research. Yet legal scholars, judges and legislatures lack a systematic understanding of how non-verbal cues influence consumers, let alone how the law should respond. This Article, while focusing on the psychology of non-verbal manipulations, aims to narrow this gap descriptively and normatively.
Keywords: market manipulations, non-verbal communication, law and psychology, behavioral economics, consumer law, paternalism, regulation
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