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Instead Of Shining A Light On Dark Patterns, New FTC Report Leaves Many Questions Unanswered – Advertising, Marketing & Branding

For some time now, dark patterns have been quite the trending
topic for both marketers and privacy professionals. Regulators have
frequently railed against dark patterns that purport to manipulate
user choices, usually through manipulative user interfaces. A
bipartisan group of lawmakers introduced legislation called the DETOUR Act that would ban dark patterns. And
outside this country, the European Data Protection Board issued
some interesting guidelines on the topic.

But back here, other than high-level, broad definitions that
could theoretically deem advertising itself a dark pattern, there
has been a lack of clarity on the issue. The main question we keep
hearing is, at what point does a dark pattern become something that
may be a deceptive or unfair practice that violates the Federal
Trade Commission Act? Back in April 2021, the Federal Trade
Commission (FTC or Commission) conducted a workshop on dark patterns. That workshop
embraced a broad definition of dark patterns, including virtually
anything that manipulated or swayed consumer choice, but failed to
provide guidance as to if and when such behavior becomes unlawful.
Even one panelist conceded that at least some of the behavior being
discussed was likely protected under the First Amendment. Many of
us had hoped that the eventual workshop report would shed some
light on whether the term “dark patterns” was nothing
more than new branding for practices that have long been unlawful
or that it would truly signal a shift toward making unlawful many
heretofore common marketing practices intended to sway consumer
choice. Late last week, the FTC issued its report following up on
the workshop. For those hoping for more detailed clarity, well, we
don’t quite have that. Instead the report continues a pattern
evident in the workshop – describing dark patterns in broad,
general terms that could encompass practices that many today might
consider lawful, while providing more specific, narrow examples
that reflect practices almost everyone already considers
misleading. For example, the report likens the use of digital dark
patterns as equivalent to putting “sugary cereals at toddler
eye-level” or at the check-out counter and condemns such
practices if they manipulate consumers into “taking unwitting
or detrimental actions.” Yet the example that follows involves
presenting a choice to consumers that features an outright lie. So
is engaging in the digital equivalent of placing the sugary cereal
at eye level deceptive even if it doesn’t involve an outright
falsehood and just because the shopper – to his or her detriment -
is manipulated into buying the digital equivalent of the sugary
cereal or candy? The reader is simply left to speculate. One
can’t help but wonder if the Commission would prefer that
advertisers stop engaging in numerous “dark pattern”
practices but can’t quite bring itself to say such practices
are unlawful.

In any event, the report does provide at least some additional
insights that may help marketers to avoid unlawful dark patterns.
Bottom line, much of the report describes prior FTC cases and
explains how the conduct in those cases were – in retrospect – dark
patterns of the illegal variety that companies should avoid.
Although that doesn’t add tremendously to the more nuanced
questions we have at the moment, it adds some value. But one thing
was quite clear: while one dark pattern is a problem, multiple dark
patterns are even more problematic. Scope and magnitude matter.

At the highest level, the report describes four useful
categories of common dark patterns and drills down on each of these

First up are the design elements that induce false
. Here the agency cites as examples aspects of
native advertising, where ads are deceptively formatted to resemble
independent editorial content and comparison-shopping sites that
appear neutral but are actually pay-to-play. Also included here are
false claims of scarcity or countdown-timers that are not actually
time-limited. A lot of these fall into the pretty standard bucket
of things that we have known are generally deceptive, and the
report doesn’t really add that much. But it does serve as a
reminder that “Companies are on the hook for the net
impression conveyed by the various design elements of their
websites, not just the veracity of certain words in
isolation.” But we were struck a bit by the observation in the
report that companies should not only focus on click-thru rates and
other metrics when making design choices, but also consider how
these choices “affect consumers’ understanding of the
material terms of the transaction.”

Category number two is design elements that hide or
delay disclosure of material information
, and, much like
the first category, a lot of this is tried-and-true deception that
the FTC has been discussing for quite some time. Here, the focus is
on hidden fees, drip pricing and related issues. The report
provides another helpful reminder that “companies should
include any unavoidable and mandatory fees in the upfront,
advertised price, and failure to do so has the potential to deceive
consumers.” Companies also shouldn’t make people think
fees are mandatory when they are not. The report does emphasize
that companies should use caution if they are targeting specific
audiences, for example older adults who could have more difficulty
seeing information placed at the periphery of the screen or in a
light color, or children who can also be uniquely affected by dark

Number three is design elements that lead to
unauthorized charges
. This has some overlap with the
second category but focuses more on the payment for goods or
services that consumers did not want or do not “intend to
buy.” Examples here included kid gaming apps, where a green
button is the standard button to proceed to the next level and
suddenly becomes a “Buy” button. The report suggests that
kids who have likely been absentmindedly pressing that next-level
button will be misled into clicking that same button and making an
unwitting purchase. What if that same green button, however, were
prominently labeled “Buy Now?” Is the practice still
unlawful? The report does not say. Other examples include free
trials with inadequately disclosed recurring subscription charges,
and the report discusses a study that showed how dark patterns made
consumers more likely to accept a free trial that had a poorly
disclosed subscription. Also included are subscription services
that make cancellation challenging, a point emphasized in the FTC negative option policy statement last
year. The report emphasizes the need to have express informed
consent before charging consumers, and reminds companies to
“not hide key terms of a purchase in a general terms and
conditions document or behind hyperlinks, pop-ups, or drop-down

And the fourth category reminds us that dark patterns are also a
very important privacy issue – design elements that obscure
or subvert privacy choices
. The report doesn’t
necessarily draw a clear line between lawful and unlawful practices
but at the outset wants businesses to “become good stewards of
consumer personal information” and practice data minimization
measures. On the subversion side, concerns are raised about default
settings that collect, use or share information in a way consumers
did not expect. In another example of how the report continues to
blur the line between dark patterns that are unlawful versus those
that may be unwise, it notes that companies should “collect
information only when the business has a justified need for
collecting the data,” but cites no precedent for why such a
practice is unlawful as long as it is clearly disclosed. The report
also emphasizes making choices easy to access and avoiding the need
to navigate through multiple screens to find or change privacy
settings. Concerns are raised about excessive sharing prompts and
interfaces that let consumers accept practices with a bold action
button but use a muted “reject” button. Interestingly,
there is a vagueness in this section about things that were
reported by panelists at the workshop and what the FTC report is
decreeing are dark patterns; but suffice it to say, now is a very
good time to take a close look at your user interfaces and make
sure that consumers can easily understand how their information is
collected and shared and that choices about these practices are
clear, easy to find and not manipulating consumers to share more
data than necessary.

The report has two appendices. The first is an extensive
compilation of types of dark patterns that is worth a close look.
Although the report does not state that any of these practices are
automatically an unlawful dark pattern, certainly if you are
engaging in any of these practices, you should be mindful of the
fact that the FTC has, at a minimum, concerns about what you are
doing. Appendix B provides some helpful visuals that picture some
pretty well-established dark patterns.

Although the report does not provide the bright-line test that
many want to see, there is helpful information here, particularly
if you have not already delved into the issue of what dark patterns
are and what you should be mindful of regarding user interfaces.
And finally, because we have been talking a bit lately about FTC press releases, we were a bit surprised
that the headline for this one read, “FTC Report Shows Rise in
Sophisticated Dark Patterns Designed to Trick and Trap
Consumers.” Looking at this heading, we read the report
expecting it to contain some actual data about the prevalence of
these practices and a demonstration of an increase in these
practices, but there is nothing like that in the report. Or at
least if there is, it is hidden behind an impenetrable wall of dark

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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