The term dark pattern describes a style of design practices that seek to confuse or mislead a consumer to purchase goods or services online, that they might not actually want. Many are already familiar with some of these practices, from subscriptions being seemingly impossible to cancel to a free trial that automatically turns into an ongoing subscription without warning, there are plenty of examples of these types of practices. Dark patterns are essentially choices a developer makes about the website design or other online services to trick users into taking unintentional actions. Determining what is a dark pattern or a design decision often lacks a clear line of distinction. Combating these dark patterns, clear definitions based on demonstrated harm should be the goal of regulators designing and enforcing the law.
Some examples of clear dark patterns include bait and switch, which is when a user action has an unpredictable result. An example of this would be an “X” button that would initiate a download when it is commonly understood that “X” is used to close the window. Dark patterns also cover practices like not notifying users before a free trial becomes a monthly subscription, hidden costs, and confirm shaming.
Questions about dark patterns and their legality have been a growing cause for concern in our rapidly evolving digital economy. When designing rules for dark patterns regulators should recognize that these patterns come in a variety of forms and varying degrees of deceptiveness. Focusing on demonstrable harm to not unintentionally encompass harmless design choices is key and regulators should focus their definition on this principle.
A less overt category, that sometimes gets labeled harmful, is messages on a website to opt out of something reading in a way that shames the user. An example is “No thanks, I don’t like saving money” when prompted to sign up for a rewards program. This is an example of where dark patterns can manipulate user decision-making but doesn’t cost the user money or any immediate tangible harm.
With so many different practices falling under the term dark patterns regulators need to focus on what causes demonstrable harm when determining what constitutes a dark pattern. In 2021, the FTC hosted a workshop on dark patterns and released a report based on their findings. In the report, the FTC defines and details the different forms of dark patterns that appear on websites and shows examples to demonstrate how they work and how they can deceive a user into making a decision they did not intend on making. The FTC discusses some of the effects that dark patterns can have and focuses on the more overtly harmful forms in its report. While other, less harmful forms are listed as well, the emphasis is on the dark patterns that directly cost consumers money.
The Federal Trade Commission (FTC) has begun to investigate these tactics used and has acted in some cases under their deceptive practices’ authority. Under Section 5 of the FTC Act, they can investigate companies that employ unfair practices One of the most noteworthy was the settlement with Epic Games. The FTC found that players had a difficult time navigating the menu in the game Fortnite for in-app purchases and because of the confusing user interface, players had made unintended purchases. In addition, it was too easy for young children to make purchases without getting their parent’s permission. These tactics resulted in clear user financial harm. In the end, Epic Games agreed to pay $245 million to affected players as refunds. As the FTC continues to pursue dark patterns, it should focus on examples of concrete harm as shown above.
The term dark pattern captures so many different practices and many more may spring up as technology evolves. Lawmakers need to emphasize the importance of clear definitions that focus on consumer harm as opposed to casting a wide net and arbitrarily capturing well-intentioned marketers as well. By doing so, businesses can be assured that they are operating in compliance with the law without worrying about accidentally coming under investigation.
Trey Price is a technology policy analyst for the American Consumer Institute, a nonprofit education and research organization. For more information, visit https://www.theamericanconsumer.org/ or follow us on Twitter @ConsumerPal.