FTC issues illuminating report on digital dark patterns

It’s ironic that the only thing clear about digital dark patterns is the FTC’s commitment to protect consumers from the injury they inflict. A new FTC Staff Report sheds light on the ways that marketers can manipulate people into buying merchandise or giving up personal information through the use of dark patterns – a phrase that describes a broad range of deceptive design elements. If your business is involved in web-based commerce, the Report discusses in detail a number of the practices that raise consumer protection concerns.

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As the FTC’s 2021 workshop, Bringing Dark Patterns to Light, and recent academic literature establish, dark patterns take on a variety of nefarious guises – for example, hiding the full cost of a transaction behind nondescript dropdown arrows or small icons, sending people on a digital scavenger hunt just to cancel a subscription, using default settings to subvert their privacy choices, or even sneaking stuff into customers’ shopping carts without their knowledge. Dark patterns also may lurk in different locations – behind cookie consent banners, inside kids’ apps, and within “free” offers, to name just a few.

You’ll want to read the Report to take a deeper dive into dark patterns, but here are four examples the Report cites:

• Design elements that cause false beliefs.  An example of this tactic is when marketers use deceptive “masquer-ads” that look like independent editorial content, but really are advertising.
• Design elements that hide key information.  This category includes the practice of burying additional fees, mandatory charges, or “drip pricing” in hard-to-find or even harder-to-understand blocks of text, often late in the transaction.
• Design elements that lead to unauthorized charges.  Marketers that take advantage of these dark patterns typically trick people into paying for goods or services they didn’t want and then bill them – often on a recurring basis – without their consent.
• Design elements that trick customers into sharing personal data.  These dark patterns often appear to give consumers a choice about sharing data, but then intentionally steer them to the option that gives away the most personal information. 

Another instructive resource in the Report is an analysis of recent FTC cases that have challenged allegedly illegal dark patterns. But the Report doesn’t just discuss the contours of the problem. It also makes practical recommendations for companies as they develop, design, and improve their online interfaces.

The Report sends two strong signals. Consumers, the FTC is on your side in the fight against digital booby traps designed to take your money and your data. Businesses that use dark patterns, consider this Report the written equivalent of that point-to-our-eyes-and-then-point-you gesture. We’re on to what you’re up to and will take action to protect people from deceptive or unfair schemes and subterfuges.