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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 <a href="https://www.warner.senate.gov/public/index.cfm/2021/12/lawmakers-reintroduce-bipartisan-bicameral-legislation-to-ban-manipulative-dark-patterns">DETOUR Act</a> that would ban dark patterns. And outside this country, the European Data Protection Board issued some <a href="https://edpb.europa.eu/our-work-tools/documents/public-consultations/2022/guidelines-32022-dark-patterns-social-media_en">interesting guidelines</a> on the topic.

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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 <a href="https://www.ftc.gov/news-events/events/2021/04/bringing-dark-patterns-light-ftc-workshop">workshop on dark patterns</a>. 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 areas.

First up are the design elements that induce false beliefs. 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 patterns.

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 <a href="https://www.ftc.gov/system/files/documents/public_statements/1598063/negative_option_policy_statement-10-22-2021-tobureau.pdf">FTC negative option policy statement</a> 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 menus.”

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 <a href="https://www.adttorneyslawblog.com/ftc/there-is-bad-press-ftc-defendant-sues-the-agency-over-an-over-the-top-release/">FTC press releases</a>, 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 patterns.

Instead of Shining a Light on Dark Patterns, New FTC Report Leaves Many Questions Unanswered