Earlier this month, the Federal Trade Commission (“FTC”) released its Staff Report, Bringing Dark Patterns to Light, which follows the FTC’s workshop on “dark patterns” in April 2021. The report emphasizes the FTC’s commitment to combat design practices that, in their view, “trick or manipulate users into making choices they would not otherwise have made and that may cause harm.” The agency’s increasing attention to dark patterns serves as a warning for companies in a variety of contexts, including privacy, marketing, e-commerce and subscription sales, and gaming. The report also makes clear that the agency’s guidance applies in all digital mediums, including websites, mobile apps, and virtual and augmented reality environments.
The FTC identifies four categories of dark patterns that consumers frequently encounter online and offers recommendations to companies on ways to avoid integrating these design elements and practices. We summarize each of these categories in detail below along with examples cited in the report and our key takeaways.
1. Deception – design elements that induce false beliefs
First, the FTC describes design elements that manipulate consumer choice by inducing false beliefs. Such elements may refer to outright false claims or design elements that create a misleading impression to spur consumers into making purchases they would not otherwise make. Examples include:
- Advertisements formatted to look like independent, editorial content
- Purportedly neutral comparison-shopping sites that actually rank companies based on compensation
- Countdown timers on offers that are not actually time-limited
- False claims that an item is sold out, or that others are currently looking at or recently purchased the same product
Key takeaways: Do not impose false or misleading pressure on consumers when trying to make a sale. Consider the net impression conveyed to the consumer, not just the individual words.
2. Disclosure – design elements that hide or delay disclosure of material information
Second, the report describes design elements that hide or obscure material information from consumers. Examples include:
- Burying key limitations of the product or service in dense terms of service that consumers do not see before purchase
- Tricking consumers into paying hidden fees by nesting mentions of fees between other more prominent, bolded paragraphs
- Engaging in “drip pricing,” in which companies lure consumers in with a lower price that is subject to extra fees upon checkout
- Requiring consumers to scroll several times before receiving information about fees and total amounts
Key takeaways: In designing e-commerce sale flows, present material information in a timely and conspicuous fashion.
3. Unauthorized Charges – design elements that lead consumers to make unintended payments
Third, the agency describes design elements that lead to unauthorized charges, whether the transaction involves a single transaction, a recurring charge, or an auto-renewing subscription. Examples include:
- Changing the placement or appearance of buttons in an attempt to induce a purchase
- Failing to obtain affirmative, unambiguous consent to the purchase or agreement
- Offering free trials then—without the consumer’s knowledge—charging a recurring subscription fee if the consumer fails to cancel before the trial period ends
- Making it difficult for consumers to cancel subscription services (e.g., requiring them to go through multiple screens and presenting multiple options that direct consumers away from cancellation)
Key takeaways: Design purchase flows to obtain express, irrefutable consent and present simple cancellation flows that are as easy to use as the method the consumer used to purchase the service. The subscription-related examples align with the FTC’s recent policy statement announcing its intent to increase enforcement related to auto-renewal and continuous service subscriptions (which we previously discussed here) and enforcement action against ABC Mouse (which we discussed here).
4. Privacy – design elements that obscure or subvert privacy choices
Finally, the FTC describes design elements that obscure or subvert consumers’ privacy choices. Dark patterns may lead consumers to be unaware of what privacy choices they have, and may deviate from their actual privacy preferences. Examples include:
- Highlighting the company’s preferred choice in a cookie consent banner
- Using default settings that maximize data collection
- Implementing unclear, double-negative toggle settings, such as a “Do Not Sell My Personal Information” option with an “off” toggle
- Forcing consumers to navigate multiple screens to find or change relevant settings
Key takeaways: Avoid default settings for data collection, use, and disclosure that are inconsistent with consumer expectations. Ensure consumers’ choices are easy to access, understandable, and designed to avoid manipulating consumers to share more data than necessary.
The FTC seems poised to ramp up its enforcement of alleged deceptive or unfair business practices that take the form of dark patterns. Although the report does not offer bright lines or narrow definitions, it does offer key insights into the agency’s areas of focus. And Appendix B of the report provides mockups of screens typifying some of the examples emphasized by the FTC. To address these issues, legal should work closely with their marketing and product teams to implement trainings, guidelines, and process requirements that will help the company steer clear of dark patterns that may expose the company to risk.
