Beware of Dark Patterns

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Yoda cautioned Luke Skywalker to beware of the Dark Side. In The Golden Compass, we were told to beware of dark materials. For those old enough to remember, the town of Collinsport was told to beware of Barnabas Collins, who lurked in Dark Shadows. And little kids in general are just plain scared of the dark. It is time now, apparently, for advertising lawyers to beware of dark patterns.

FTC Commissioner Chopra recently tweeted about “dark patterns,” writing:

Understandably, you might be asking yourself, “What is a dark pattern, and is my marketing team doing it? And why didn’t I take a class on whistleblower protection in law school?” Thankfully, a website called darkpatterns.org explains what dark patterns are. Many of these practices may already be familiar to you, albeit not as “dark patterns.” Some of them, such as “bait and switch” or “disguised ads,” are likely things you already caution your marketing team against. However, there are other practices identified as dark patterns that you may well have thought would not attract the attention of FTC dark pattern hunters or potentially form the basis of a Section 5 violation. We highlight a few below. Now, we’re not necessarily suggesting that these practices do violate Section 5 – only that the FTC may be paying closer attention to such practices, so you may want to give them an extra look just to make sure they are not going to create a Section 5 problem.

Price-Comparison Prevention: The retailer makes it hard for you to compare the price of an item with another item, so you cannot make an informed decision.

Misdirection: The design purposefully focuses your attention on one thing in order to distract your attention from another.

Confirmshaming: The act of guilting the user into opting into something. The option to decline is worded in such a way as to shame the user into compliance.

Hidden Costs: You get to the last step of the checkout process only to discover some unexpected charges have appeared, e.g., delivery charges, tax, etc.

Roach Motel: You get into a situation very easily but then find it’s hard to get out of (e.g., a premium subscription).

The list goes on, but you get the idea. Just in case you find yourself wanting to know more about any of these patterns, the website allows you to click on each topic to see a fuller explanation and examples of the practice. It will be interesting to see whether more and more of these practices make their way into FTC investigations and complaints.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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