FTC Workshop Signals Increased Regulatory Focus on Dark Patterns

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On April 29, 2021, the Federal Trade Commission (FTC) hosted a virtual workshop, entitled “Bringing Dark Patterns to Light,” to examine “dark patterns.” In her opening remarks, Acting FTC Chairwoman Rebecca Kelly Slaughter broadly described “dark patterns” as “user interface designs that manipulate users into taking unintended actions that may not be in their interests.” Chairwoman Slaughter highlighted several examples of dark patterns, including confusing cancellation procedures that force users to navigate multiple screens, online applications that hide the material terms of a product or service through the use of inconspicuous drop down links and auto-scroll features, and the addition of products to users’ shopping carts without their knowledge or consent.

The workshop explored topics such as what design practices constitute digital dark patterns, the impact of dark patterns on consumers—and in particular on groups that may be especially susceptible to manipulation, such as children, the elderly, or communities of color—and future strategies that the FTC can take to address dark patterns.

As noted by numerous panelists throughout the workshop, dark patterns are not new to the marketplace or to governmental oversight. The FTC has been working for years to combat unfair and deceptive design practices through its authority under Section 5 of the FTC Act and statutes like the Restoring Online Shoppers’ Confidence Act. States have also brought enforcement actions related to dark patterns. Jennifer Rimm, an Assistant Attorney General at the Office of the Attorney General for the District of Columbia, spoke about recent consumer protection lawsuits brought by her office against delivery companies, hotels, and social media platforms for dark patterns such as inadequate charge disclosures, bait-and-switch tactics that impede consumers’ ability to price compare fees, and hard-to-find privacy settings.

The speakers also discussed how federal and state legislatures have tried to address dark patterns by expanding the authority available to bring enforcement actions. In their opening remarks, U.S. Senator Mark Warner and Congresswoman Lisa Blunt Rochester signaled their intent to incorporate ideas from the FTC’s workshop into future legislative efforts. Both lawmakers previously introduced the Deceptive Experiences to Online Users Reduction (DETOUR) Act in the Senate and House, respectively, which would have prohibited large online platforms from using intentionally deceptive interfaces to extract data from online users. Additionally, states have begun to address dark patterns through consumer protection statutes like the California Consumer Privacy Act (CCPA). In March, the California attorney general issued amendments to the CCPA’s implementing regulations to prohibit the use of opt-out methods that are “designed with the purpose or [have] the substantial effect of subverting or impairing a consumer’s choice to opt-out”—such as:

  • Using confusing language, like double-negatives (e.g., “Don’t Not Sell My Personal Information”);
  • Requiring consumers to click through or listen to reasons why they should not submit a request to opt-out before confirming their request; or
  • Forcing consumers to search or scroll through the text of a privacy policy or similar document or webpage to locate the mechanism for submitting a request to opt-out.

Last November, California voters also ratified the California Privacy Rights Act, which, among other things, revises the CCPA’s definition of consent to exclude any consent obtained through the use of dark patterns.

In his closing remarks, Daniel Kaufman, the acting director of the FTC’s Bureau of Consumer Protection, declined to commit the agency to issuing additional rules, policy statements, or enforcement guidance but warned that nothing is off the table and that companies should expect continued aggressive enforcement against the use of dark patterns at both the federal and state level.

The FTC is still seeking public comments on the following topics until May 29, 2021:

  • Defining dark patterns;
  • Prevalence of dark patterns;
  • Factors affecting dark pattern adoption;
  • Dark patterns and machine learning;
  • Effectiveness of dark patterns;
  • Harms of dark patterns;
  • Consumer perception of dark patterns;
  • Market constraints and self-regulation; and
  • Solutions.

Additional information about the above topics and about how to submit comments is available here.

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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