We have written a few times about so-called "dark patterns" in recent months. Now, the US Federal Trade Commission has issued a report in which it says that companies are increasingly using sophisticated design practices which can trick or manipulate consumers into buying products or services or giving up their privacy.
Such practices include disguising ads to look like independent content, making it difficult for consumers to cancel subscriptions or charges, burying key terms or "junk fees" (added on at the conclusion of a transaction), and tricking consumers into sharing their data.
The FTC points out that this actually isn't a new thing - for years, direct mail and bricks-and-mortar retailers have used design tricks and psychological tactics such as pre-checked boxes, hard-to-find-and read disclosures, and confusing cancellation policies, to get consumers to give up their money or data. An example would be requiring a customer to phone to cancel a subscription, and refusing to accept an email in the hope that the customer will give up if their call is not answered. As commerce has moved online, practices have increased in scale and sophistication, allowing companies to develop complex analytical techniques, collect more personal data, and experiment with dark patterns to exploit the most effective ones.
Like other regulators, the FTC has been taking action. Examples include where users have been required to navigate a maze of screens to cancel recurring subscriptions, websites placing unwanted products into consumers’ online shopping carts without their knowledge, and experimenting with deceptive marketing designs.
In the UK, the CMA has published a report about dark patterns and algorithms and consumer harm and has taken action on subscriptions. At EU level, the Digital Services Act will combat the issue to the extent that the GDPR and Unfair Commercial Practices Directive do not already cover practices.
The issue of dark patterns is a global one. Companies obviously want to sell their products and retain customers, but need to do so fairly, without eroding customer trust or falling foul of regulatory provisions.
For more information about the report, see this article by our US partners in the Global Advertising Lawyers Alliance.
Our report shows how more and more companies are using digital dark patterns to trick people into buying products and giving away their personal information