U.S. Privacy and Data Protection | Insights | July 2024 (Federal Law)

The Federal Trade Commission (FTC) and regulators continue to take an interest in so-called “dark patterns,” including after announcing their findings in how dark patterns continue to affect online services and consumers. Businesses should take note in their advertising and internal practices.

What are “Dark Patterns”

The term “dark patterns” generally refers to a manipulative design practice that trick users into making decisions they might not otherwise make, such as purchasing products or services, or surrendering their privacy unknowingly.¹ For example, the California Consumer Privacy Act (CCPA) provides that a dark pattern “means a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision making, or choice.” These tactics allegedly exploit consumer behavior or delay access to crucial information when agreeing to something from a business. Examples can occur when a non-optional fee is added at the end, or a subscription is automatically renewed after a free trial without the user’s informed consent (including as agreement through a “dark pattern” is not “consent”).

In particular, “drip pricing” (where fees are added later on in a purchase flow) is a commonly-used example of a dark pattern where regulators claim that businesses manipulate consumers into paying fees that are either hidden entirely or not presented upfront. In these cases, the government may argue that businesses intentionally mislead consumers to show only part of a product’s total price, e.g., if they do not mention other mandatory charges until consumers are already committed in the buying process. While companies may raise other arguments, it is important to know that some states, including California, have recently enacted laws that prohibit “drip pricing” or “junk fees” by requiring “all in” prices to be disclosed upfront to provide more transparency for consumers.

Recent Review Findings

According to a recent FTC press release, the International Consumer Protection and Enforcement Network (ICPEN) conducted an annual review of 642 websites and mobile apps offering subscription services worldwide. Officials from 27 authorities across 26 countries found that nearly 76% of these sites used at least one dark pattern, with 67% using multiple.² Common tactics included hiding important information and preselecting options to encourage users toward decisions that benefitted the business.

The report also outlined other examples of so-called dark patterns, including “sneaking” (hiding or delaying important information), “interface inference” (steering consumers into decision making, such as by showing one option more favorably), “confirm shaming,” “obstruction” practices, “social proof” (to nudge consumers based on supposed behavior of others e.g., “15 people have bought in the last hour”), “forced action,” “urgency” or “pressure sale” claims (e.g., “low in stock”), and “nagging” (e.g., sending out repeated requests to the consumer). Some of these examples appear to be common practices.

Still, this shows a growing FTC and regulator interest in continuing to crack down on businesses that are allegedly utilizing deceptive dark patterns. This is true despite what business competitors may be doing. Risks in this area include monetary and non-monetary penalties and facing expensive litigation.

How Can Kronenberger Rosenfeld Help?

Kronenberger Rosenfeld, LLP regularly assists businesses with digital advertising and data privacy issues, including proactive compliance and experienced advice if legal issues arise. If you need assistance for your business, you can contact our firm using our online case submission form here.