The FTC has released a report concerning the perhaps poorly named “Dark Patterns.” Dark patterns are generally deceptive, confusing or misleading systems, tactics and procedures used by website or software developers or operators which may harm consumer privacy interests. The Press Release for the Report states:
The Federal Trade Commission released a report today showing
how companies are increasingly using sophisticated design practices known as
“dark patterns” that can trick or manipulate consumers into buying products or
services or giving up their privacy. The dark pattern tactics detailed in the
report include disguising ads to look like independent content, making it
difficult for consumers to cancel subscriptions or charges, burying key terms
or junk fees, and tricking consumers into sharing their data. The report
highlighted the FTC’s efforts to combat the use of dark patterns in the
marketplace and reiterated the agency’s commitment to taking action against
tactics designed to trick and trap consumers.
“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,” said Samuel Levine, Director of the FTC’s Bureau
of Consumer Protection. “This report—and our cases—send a clear message that
these traps will not be tolerated.”
For years, unscrupulous direct-mail and brick-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. As more
commerce has moved online, dark patterns have grown 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. The staff
report, which stems from a workshop
the FTC held in April 2021, examined how dark patterns can obscure,
subvert, or impair consumer choice and decision-making and may violate the law.
The report, Bringing Dark Patterns to Light, found
dark patterns used in a variety of industries and contexts, including e-commerce,
cookie consent banners, children’s apps, and subscription sales. The report
focuses on four common dark pattern tactics:
- Misleading Consumers and Disguising Ads: These
tactics include advertisements designed to look like independent,
editorial content; comparison shopping sites that claim to be neutral but
really rank companies based on compensation; and countdown timers designed
to make consumers believe they only have a limited time to purchase a
product or service when the offer is not actually time-limited. For
example, the FTC took action against the operators of a work-from-home
scheme for allegedly sending unsolicited emails to consumers that
included “from” lines that falsely claimed they were coming from news
organizations like CNN or Fox News. The body of these emails included
links that sent consumers to additional fake online news stories, and then
eventually routed consumers to sales websites that pitched the company’s
work-from-home schemes.
- Making it difficult to cancel subscriptions or
charges: Another common dark pattern involves tricking someone
into paying for goods or services without consent. For example, deceptive
subscription sellers may saddle consumers with recurring payments for
products and services they never intended to purchase or that they do not
wish to continue purchasing. For example, in its case against ABCmouse,
the FTC alleged the online learning site made it extremely difficult to
cancel free trials and subscription plans despite promising “Easy
Cancellation.” Consumers who wanted to cancel their subscriptions
were often forced to navigate a difficult-to-find, lengthy, and confusing
cancellation path on the company’s website and click through several pages
of promotions and links that, when clicked, directed consumers away from
the cancellation path.
- Burying key terms and junk fees: Some
dark patterns operate by hiding or obscuring material information from
consumers, such as burying key limitations of the product or service in
dense terms of service documents that consumers don’t see before purchase.
This tactic also includes burying junk fees. Companies advertise only part
of a product’s total price to lure consumers in, and do not mention other
mandatory charges until late in the buying process. In its case
against LendingClub, the
FTC alleged that the online lender used prominent visuals to falsely
promise loan applicants that they would receive a specific loan amount and
pay “no hidden fees” but hid mention of fees behind tooltip buttons and in
between more prominent text.
- Tricking consumers into sharing data: These
dark patterns are often presented as giving consumers choices about
privacy settings or sharing data but are designed to intentionally steer
consumers toward the option that gives away the most personal
information. The FTC alleged that smart-TV maker Vizio enabled
default settings allowing the company to collect and share consumers’
viewing activity with third parties, only providing a brief notice to some
consumers that could easily be missed.
As detailed in the report, the FTC has worked to keep pace
with the evolving types of dark patterns used in the marketplace. The
Commission has sued companies for requiring users to navigate a maze of
screens in order to cancel recurring subscriptions, sneaking unwanted products
into consumers’ online shopping carts without their knowledge, and experimenting
with deceptive marketing designs.
The Commission voted 5-0 at an open meeting to authorize
the release of the staff report.