FTC Staff Report Highlights Dark Patterns – Advertising, Marketing & Branding

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Charity please? Federal Trade Commission (FTC) staff are focusing on a “trick” this spooky season: designing user interfaces to trick or manipulate users into taking actions they wouldn’t otherwise approve of, or putting put in place barriers to discourage consumers from exercising certain rights. These so-called “dark patterns” are an ongoing concern of the FTC, as noted in a previous alert (regarding online subscriptions and e-commerce practices). Dark patterns have also been specifically called out in a number of new state privacy laws. A recently released report by FTC staff on dark schemes indicates that this concentration is only growing, and dark schemes can encompass a wide range of common business practices – from contingency offers to fee disclosures.

Design elements that induce false beliefs

The staff report discusses dark patterns that manipulate consumer choice by inducing false beliefs. These include:

  • Ads deceptively formatted to look like independent editorial content

  • Supposedly neutral comparison sites that actually rank companies based on their compensation

  • Countdowns on offers that aren’t actually time-limited

  • Claims an item is nearly sold out when there is actually enough supply

  • False claims that other people are also watching or have recently purchased the same product

To illustrate, the following includes a meaningless countdown timer that forces users to buy immediately (but the clock disappears or resets when it expires).

As seen in the FTC staff report “Bring Dark Patterns to Light”,

September 2022

Businesses should keep in mind that they are responsible under FTC law for the net impression conveyed by the various design elements of their websites. When designing user interfaces, companies need to consider how these choices affect consumers’ understanding of the material terms of the transaction, and not just focus on the effect their design choices have on sales, click-through rates, or other profit-based metrics.

Design elements that conceal or delay the disclosure of material information

The report also discusses dark schemes that work by hiding or obscuring important consumer information such as major limitations and fees. This type of dark pattern includes, for example:

  • Hide limitations behind obscure buttons that consumers are unlikely to click

  • Hide fee information in non-bold text, sandwiched between larger, bold paragraphs

  • “Drip pricing”, where only a portion of a product’s total price is advertised (to entice consumers), and other mandatory fees are disclosed late in the purchase process

The table below shows drip pricing, as an unexpected convenience fee of $4.99 only appears right before the user pays:

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As seen in the FTC staff report “Bring Dark Patterns to Light”,

September 2022

Companies should ensure that their important information is clear and visible, and sales practices aimed at a specific audience should consider how their claims and design choices will be perceived by those groups. For example, if a company is marketing a product to older people, it should avoid design elements that are more difficult for older consumers to perceive (for example, important information hidden around the edge of the screen or in a color clear). Businesses must also include all unavoidable and mandatory charges in the up-front advertised price and must not mislead consumers into thinking that charges are mandatory when they are not.

Design Elements Incurring Unauthorized Charges

The report relied on the FTC’s Enforcement Policy Statement Regarding Negative Option Marketing and reiterated that the Commission targets negative option programs through the Restore Online Shoppers’ Confidence Act (ROSCA). . ROSCA prohibits billing for goods and services sold over the Internet using a negative opt-in feature unless the seller (1) clearly and prominently discloses all material terms of the transaction prior to obtaining the consumer’s billing information; (2) obtains the consumer’s express informed consent before debiting the consumer’s account and (3) provides simple mechanisms for the consumer to stop recurring charges.

It is important to note that dark patterns can result in violations of each of these requirements by:

  • Obscure material terms (for example, that a free trial will convert to a paid subscription if not cancelled)

  • Trick the consumer into consent by failing to disclose that the consumer is signing up for a recurring fee (common among mobile apps that target children, who may believe they are playing a game, instead of making an actual purchase )

  • Discourage or prevent the consumer from canceling the subscription (by making it difficult to find the option to cancel or by subjecting the consumer to additional promotions and offers before allowing cancellation)

To illustrate, below includes a hidden subscription; even though the offer is advertised as a free trial, it charges a recurring fee. Additionally, users can only cancel over the phone, although they can register online.

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As seen in the FTC staff report “Bring Dark Patterns to Light”,

September 2022

To help avoid these dark patterns, businesses should not hide key terms of a purchase in a terms and conditions document or behind hyperlinks, pop-ups or drop-down menus. Companies must ensure that they obtain the express and informed consent of the account holder for all charges (especially for mobile applications and games often played by children, where the account holder may be a parent or person other than the child playing the game).

Finally, with regard to cancellation, sellers of negative options should offer cancellation mechanisms that are at least as easy to use as the method used by the consumer to purchase the product or sign up for the service – this means that (1) consumers should be able to terminate their subscription by the same means used by the consumer to subscribe to the negative option plan; (2) sellers shall not subject consumers to new offers or similar account backup attempts that impose unreasonable delays on consumers’ cancellation efforts; and (3) if Seller provides for cancellation by telephone, it should, at a minimum, answer all calls to its cancellation number during normal business hours, within a short period of time, and calls from cancellation should not be longer or otherwise more burdensome than the telephone call used by the consumer to register.

Design elements that obscure or subvert privacy choices

Dark patterns that obscure or subvert consumer privacy choices make consumers unaware of the privacy choices they have online or what those choices might mean, the report says. These techniques discourage or prevent a consumer from opting out of data sharing and include tactics such as:

  • Repeated request to share data

  • Confusing privacy settings

  • Obfuscation of settings to prevent data sharing

  • Make data sharing the default or most important choice

Below is an example of confusing design, style, and language choices that can lead consumers to share more information than they’d like.

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As seen in the FTC staff report “Bring Dark Patterns to Light”,

September 2022

FTC staff said that “companies should, above all, aspire to be good stewards of consumers’ personal information.” In addition to minimizing data collection efforts, companies should avoid default settings that lead to the collection, use or disclosure of consumer information in unexpected ways, and make consumer choices easy. accessible and understandable. Additionally, choices regarding sensitive information must be clearly presented (as opposed to blanket consent), along with any information users need to make an informed decision (for example, whether the consumer consents to the collection of their information , this information will be shared with third parties).

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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