The Federal Trade Commission (FTC) recently shed new light on a growing area of consumer protection in the digital age: “dark patterns,” which have been described as website design elements or mobile applications that tend to deceive or manipulate users. to make decisions that they otherwise would not have made. In our previous three articles on this topic, we have covered the recent vonage Y epic games deals for $100 million and $245 million, respectively; methods companies can use to comply with dark employer rules; and the potential First Amendment implications of dark employer regulation.[1]
The FTC’s new focus on dark patterns also suggests that there may also be “light patterns” or “bright patterns”: design elements that enhance the decision-making process for consumers by making it easier for consumers to navigate and follow instructions on the user interface of a company.[2] Some have suggested that companies should proactively guide consumer decision making to cater to what is most likely to be in the best interest of consumers, even if doing so comes at a financial cost to the company.[3] Therefore, companies may want to consider documenting how they make their design decisions so that (if faced with a dark pattern challenge) they can demonstrate that their intent is to improve the consumer experience.
For example, automatic renewal features have long received the attention of regulators.[4] One commenter suggests that companies should, after long periods of inactivity, stop automatically renewing subscriptions. Alternatively, a “light pattern” could be a company sending an email warning consumers that their subscriptions are about to renew and allowing them to unsubscribe with a single click.[5] However, existing law in many states already extensively regulates auto-renewal marketing, requiring notice and the opportunity to cancel before renewing a subscription.[6] It is not clear if to avoid a dark pattern claim, a company must design something that is longer than is required by applicable state law. However, businesses that operate in multiple states, including some that do not or only lightly regulate auto-renewal practices, may choose to align their nationwide practices with the laws of a state with strict consumer protection rules such as Possible defense to an FTC dark practices complaint on behalf of consumers living in less regulated states. Such behavior is unprecedented. For example, when California enacted comprehensive consumer privacy legislation, many large companies announced that they would implement California rules nationwide, rather than just for their California customers.[7]
Other possible light patterns require some assumptions about what the consumer “really” intended to do. Businesses can flag certain transactions that customers may be performing in error; For example, a company’s online platform might alert customers that a certain item in their cart is not the correct accessory to pair with another item they are purchasing (instead of automatically adding unnecessary accessories). to your cart).[8] One potential downside is annoying customers with unnecessary warnings when they really want to engage in buying behavior that is out of the ordinary. Any warning system requires extensive knowledge of the company’s customer base and purchasing patterns.
It goes without saying that businesses want to offer a positive online experience through systems that are easy to navigate. If customers have an unpleasant experience, they are less likely to return. Anything that is shown to lead to repeat business, then, could be described as a light pattern. Herein lies the rub: it can be argued that repeat business and frequent use are proof that something is both a dark pattern and a light pattern. Are customers being manipulated into making their purchasing decisions or do they really love the product?
Similarly, it can be argued that design elements that reduce friction in the shopping experience, allowing transactions to be completed more quickly and with less effort, are both dark and light patterns. Is the one-click shopping experience a dark pattern because it allows purchasing decisions to be made without proper reflection? Or is it a light pattern because it fits into people’s busy schedules and accommodates their desires, expressed through their past shopping habits?
Creating a dark pattern or a light pattern implies a degree of paternalism on the part of the company. In each case, the company is making a decision about what consumers should do in a given circumstance, and often what consumers should want, even if consumers think they want something different. Regulators evaluating marketing techniques often bring their own biases and assumptions to their assessment of a company’s marketing strategy. “I would never pay $__ for a product like that, and I certainly wouldn’t pay twice! Someone must have been tricked! Or more often, “In the long term, product ____ should be used only sparingly; The customers who love you the most should be discouraged from selling more.” When faced with either point of view, a company must be able to explain how it creates value, the need it fills, and (in the case of products considered socially undesirable, even if they are legal) how it mitigates excessive or inappropriate use. Fundamentally, marketing must be truthful and must be consistent with all of these, and this is true of both traditional advertising and the online environment.
Sometimes, however, a challenged technique like a dark pattern can be essential to a company’s business model. For example, more and more companies rely on data collection, as well as the tracking, sharing and/or sale of data. The more transparent the disclosure of actual business practices, the easier it will be to defend against claims that shady employers are employed. Better yet, being able to demonstrate that consumers received value for their data will help demonstrate compliance.[9] The “value” here may not need to be cash consideration. A company could defend itself against a dark pattern claim by establishing that a substantial percentage of its customer base prefers or at least does not disapprove of how its data is used, and that the particular use allows the company to offer other benefits. such as lower prices, higher quantity, higher quality, faster shipping, or to better tailor your set of product offerings to your customers’ desires. Rather than strictly prohibit particular practices, it may be better for regulators to weigh both the costs and the benefits gained by allowing the practice to continue in particular contexts. Ultimately, companies will need to persuade regulators of both their good intentions and their ability to achieve good results for consumers.
Crucially, a company that follows sound design principles and is transparent with both its pricing and the quality of its products will have strong defenses against an obscure pattern claim. Documentation of how you seek to improve the customer experience through your design choices will also be helpful, as will a record of responding to customer complaints and suggestions for improvements. The best defense against a legal claim is, as in so many areas, good customer service.
[1] Stephen Newman and others, How the Federal Trade Commission is aggressively targeting “dark employer” marketing. Is Vonage’s nine-figure deal just the beginning?, Stroock (December 7, 2022), https://www.stroock.com/news-and-insights/how-the-federal-trade-commission-is-vigorously-targeting-dark-patterns-marketing-is- vonages-nine-figure-clearance-just-the-beginning; Stephen Newman and others, How to successfully run the FTC’s shadowy employer “hurdle course” and keep your online business in compliance with consumer protection rules, Stroock (December 21, 2022), https://www.stroock.com/news-and-insights/how-to-successfully-run-the-ftcs-dark-patterns-obstacle-course-and-keep- your-online-business-in-compliance-with-consumer-protection-rules; Stephen Newman and others, Possible First Amendment defenses to a claim of shadowy employers, Stroock (January 6, 2023), https://www.stroock.com/news-and-insights/potential-first-amendment-defenses-to-a-dark-patterns-claim#1.
[2] network Advertising Initiative, Exposing Dark Patterns: An FTC Workshop, Comments from the Network Advertising Initiative (NAI), filed with the Federal Trade Commission, p. 8 (March 15, 2021), https://thenai.org/wp-content/uploads/2021/07/nai_comments_ftc_dark_patterns_15march2021.pdf
[3] Coleman, Aidan Light and dark UX patternsPrototypr, (May 26, 2019), https://blog.prototypr.io/light-and-dark-ux-patterns-19ffcaa50e9a.
[4] Watch FTC, negative options (January 2009), https://www.ftc.gov/sites/default/files/documents/reports/negative-options-federal-trade-commission-workshop-analyzing-negative-option-marketing-report-staff/ p064202negative options report.pdf
[5] Boag, Paul. Are you using light patterns?Boagworld (February 3, 2022), https://boagworld.com/emails/are-you-using-light-patterns/
[6] Watch California. Bus. and Prof. Code § 17602.
[7] Watch M Smith, Analysis: Microsoft to Expand CCPA Rights Nationwide; You should? (November 18, 2019), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-microsoft-to-extend-ccpa-rights-nationwide-should-you
[8] Watch coleman, supra.
[9] California is at the forefront of this problem, as a California Privacy Protection Agency regulation outlines how a company can calculate the value of consumer data. Watch 11 cal. Reg. Code § 7081. Since the FTC has not issued similar guidance, a business could choose to use the methods outlined in the California regulation to justify that because it has given consumers fair value for their data , has not engaged in shady marketing practices.