FTC Brings Dark Patterns to Light
On September 15, 2022, the Federal Trade Commission (FTC) released a report titled ‘Bringing Dark Patterns to Light’ (the “Report”) detailing the use of dark patterns across a variety of industries and the years of effort that these companies committed to establishing dark patterns.
The Report stems from a workshop the FTC held on April 29, 2021, featuring various speakers, including consumer advocates; Congressional members; research and industry professionals; and legal experts that examined how dark patterns can have the effect of “obscuring, subverting or impairing consumer autonomy and decision-making.” According to the FTC press release, the release of this staff Report was approved by a 5-0 vote of the Commission.
The Report analyzes how dark patterns have advanced in scale and sophistication since much of commerce has transitioned into an online presence. The alleged dark pattern tactics include:
disguising advertisements to seem like independent or editorial consumer-based content but routed consumers to the organization’s website;
making it difficult for consumers to understand data protection and privacy policies or to unsubscribe from the collection of their consumer data; and
adding products to consumers’ online shopping carts without their knowledge or consent, inevitably tricking consumers into purchasing unwanted items.
To combat the use and deter companies from using in dark patterns, the FTC has reportedly sued several companies utilize such tactics. Additionally, the FTC has committed to continuing to monitor and counteract the evolving dark patterns used in the marketplace.
According to a statement by Samuel Levine, Director of the FTC’s Bureau of Consumer Protection, “[t]his report—and our cases—send a clear message that these traps will not be tolerated.”
In light of the FTC’s efforts, companies that engage in digital marketing should ensure that their organization follows the following best practices:
Ensure that the context of marketing content is clear and, in accordance with the FTC’s advice, “look not just at the effect their design choices have on sales, click-through rates, or other profit-based metrics, but also [at] how those choices affect consumers’ understanding of the material terms of the transaction.”
Include any mandatory or unavoidable fees in the advertised price prior to directing the consumer to checkout.
Ensure that advertisements are not targeting vulnerable populations, especially if the advertisement is likely to be viewed by children.
Any disclosures on the organization’s website should be clear and in a digestible format.