On April 29, 2021, the Federal Trade Commission (“FTC”) held a virtual workshop, Bringing Dark Patterns to Light, which discussed the use of “dark patterns,” how they impact consumers, and ways the FTC can combat these methods.
What are dark patterns?
The FTC has defined “dark patterns” as website design features or interfaces which are used to deceive, steer, and manipulate users into behavior that is profitable for the website owner but detrimental to consumers. The panelists agreed that while the term “dark patterns” is useful as a general characterization, it does not adequately convey the term’s meaning from a legal standpoint. According to the panelists, dark patterns are also difficult to identify because many are intentionally designed to be covert.
Although many of the panelists used terms like “manipulative tactics” or “deceptive practices” to describe dark patterns, one of the most comprehensive definitions came from Arunesh Mathur, a Postdoctoral Research Fellow at Princeton University, who described six attributes that make up dark patterns:
- Deceptive — Induces false beliefs. (For example, a countdown timer on a website in which makes customers believe they have a limited time to receive an offer when they do not.)
- Information Hiding — Delays or hides important information from users. (For example, charging a hidden fee that is not adequately disclosed to consumers.)
- Asymmetric — Makes certain options that a customer may want to choose difficult to find or access. (For example, a cookie consent dialogue box that pops up where the assent option is readily available but the deny button is hidden behind several screens.)
- Covert — Users do not understand how they are being influenced. (For example, a pop-up offering a discount that requires consumers to enter their email address and their phone number to receive the discount, even when the phone number is unnecessary to fulfill the offer.)
- Differential Treatment — Treats one group of users differently from the other. (For example, the only way to get ahead in an online game is by purchasing certain packages or features.)
- Restrictive — Eliminates certain options from the user. (For example, consumers must agree to receive marketing emails when agreeing to the terms and conditions.)
How do dark patterns affect consumers?
Workshop participants made clear their opinions that dark patterns are effective at manipulating and deceiving consumers. Professor Lior J. Strahilevitz from the University of Chicago Law School presented data from two studies on dark patterns. The first study concluded that participants who were exposed to “aggressive” dark patterns were more likely to agree to purchase software compared to those exposed to “mild” dark patterns who, in turn, were more likely to purchase software than those not exposed to dark patterns. The second study found that the most effective dark patterns are information hiding, social proof (i.e., indicating that many other consumers have agreed or purchased the product), and confirm-shaming (i.e., using a decline button that says “I do not want to protect my private information” for purchasing identity protection software). The panelists concluded that dark patterns are effective in convincing consumers to make decisions, complete purchases, or provide information that they would not have otherwise.
According to panelists, consumers face a variety of harms from dark patterns including financial harm, disclosure of private or personal information, and harms to personal integrity like freedom of choice or freedom of thought. The panels also emphasized that some groups are targeted by companies using dark patterns, including communities of color that are targeted by companies under the guise of zip codes, and private information from these communities is sold to others further endangering the community. Additionally, children and teens are targeted by companies, especially through gaming apps that mislead children into spending money. The panelists expressed concern that many dark patterns are undetectable to the average consumer.
What happens going forward?
The FTC stated that dark patterns are a priority, both in rulemaking and enforcement actions, and panelists emphasized the need for FTC intervention. They noted that dark patterns are personalized and can adapt quickly, making them difficult to target. Previously, the FTC brought an action against ABC Mouse, a children’s online education company, for misleading their customers regarding their subscription program. ABC Mouse and the FTC entered into a settlement agreement where ABC Mouse must keep unedited voice recordings of any transactions for several years. This is a mechanism that could be employed by the FTC going forward in enforcement actions involving dark patterns. For more information on the ABC Mouse case, take a look at our blog here.
Thus, panelists agreed that a multi-pronged strategy is needed to combat dark patterns. Most agreed that the FTC already has enforcement mechanisms in place to combat dark patterns. For example, the FTC can promulgate guidance and issue warning letters to offenders. In addition, self-regulation amongst companies who use digital marketing could be another effective way to combat these practices.
The Dark Patterns workshop made clear that the FTC intends to target “dark patterns,” despite the difficulty defining the term and distinguishing between ordinary and effective digital marketing methods and deceptive tactics. Given that this concept has begun to emerge in FTC enforcement actions and in private class actions, businesses should take note and evaluate their digital marketing to reduce their risk The somewhat nebulous nature of what might constitute a dark pattern will make this challenging.
In addition, the FTC has sought public comments on these topics presumably for use in a report building on the workshop. The deadline for submitting comments is May 29, 2021.