Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

Data Counsel

Home | Data Counsel

core/image

The Federal Trade Commission issued a detailed <a href="https://www.ftc.gov/news-events/news/press-releases/2022/09/ftc-report-shows-rise-sophisticated-dark-patterns-designed-trick-trap-consumers">[staff report]</a> on September 15 addressing Dark Patterns (or what some more descriptively call “manipulative design,” but Dark Patterns seems to be sticking). Regulators are focusing increased attention on these manipulative designs and it’s critical for marketing, user experience and design teams to understand this topic.

core/paragraph

The staff report brings together two types of dark patterns you’ll see in use. The first manipulates consumers into purchasing, subscribing to or not canceling products or services. The item you think is a one-time purchase, but subscribes you to a recurring monthly purchase. The maze you’re sent through to cancel a subscription. The slight intentional delay added to a page to make it just a bit more unlikely that you’ll finish the unsubscribe process. The false statement on an order page that there’s only “One item left!” (isn’t it amazing how often that happens?). The variations are endless.

The second manipulates consumers into “agreeing” or “consenting” to give up information they might not otherwise agree to. The familiar “Accept” button with no equal option to reject (which those operating in Europe will recognize from cookie-banner enforcement actions under the e-Privacy Directive and GDPR). Again, many variations on the theme.

It can sometimes be difficult to decide (and there’s room for debate about) when an activity has crossed the line from clever marketing to impermissible manipulative design (and, therefore, from acceptable influence to impermissible manipulation). But state, federal and international regulators are wise to the game. Companies would be wise to cut out activities that cross the line, and guide relevant teams on how to avoid the most problematic examples.

And it’s not just scam artists that must take note. Although some of the staff report’s examples are associated with clear scams, it would be a mistake to assume that the issue is limited to those scams. Manipulative designs are everywhere, which is part of the problem. Manipulative designs are so prevalent that marketing teams and UX designers might believe it’s the right way to do things, or that they aren’t being “creative” enough if they aren’t using them. The staff report provides a good collection of examples and visual aids for discussions with these teams about where the line is, what’s clearly on either side of it and what might be in that gray middle.

The FTC’s Latest Staff Report on Dark Patterns: A Warning for Marketing Teams and UX Designers