FTC Releases Staff Report on "Dark Patterns," Warning Marketers That "These Traps Will Not be Tolerated"

Last week, the Federal Trade Commission released a staff report, Bringing Dark Patterns to Light, which highlights the FTC's concern about markers' increasing use of so-called "dark patterns" to manipulate consumers.  In a statement, Samuel Levine, the Director of the FTC's Bureau of Consumer Protection, explained, "Our report shows how more and more companies are using digital dark patterns to trick people into buying products and giving away their personal information.  This report -- and our cases -- send a clear message that these traps will not be tolerated."  

What are "dark patterns"?  The FTC defines them as "design practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm." 

In the staff report, the FTC identifies common types of dark patterns, and then gives recommendations to marketers about how not to engage in these types of practices.  The highlights are described below.  The report then ends with a warning to marketers that, "While dark patterns may manipulate consumers in stealth, these practices are squarely on the FTC's radar."  

Design Elements that Induce False Beliefs

The first type of dark pattern identified in the staff report is one that uses "design elements that induce false beliefs."  This type of dark pattern could be something as simple as a false claim or it could be a design element that "creates a misleading impression to spur a consumer into making a purchase they would not otherwise make."  

The FTC said that common examples of this type of dark pattern include advertisements that are deceptively formatted to look like independent, editorial content, countdown timers on offers that are not actually time-limited, and claims that an item is almost sold out when there is actually ample supply. 

The FTC said that marketers should "make certain that their online interfaces do not create false beliefs or otherwise deceive consumers."  In order to do this, the FTC explained that marketers should "look not just at the effect their design choices have on sales, click-through rates, or other profit-based metrics, but also on how those choices affect consumers' understanding of the material terms of the transaction."  

Design Elements that Hide or Delay Disclosure of Material Information

Next, the FTC identified a type of dark pattern that uses design elements to "hide or delay disclosure of material information."   

The FTC explained that some dark patterns operate by "hiding or obscuring material information from consumers, such as burying key limitations of the product or service in dense Terms of Service documents that consumers don't see before purchase."  Other dark patterns, the FTC said, either trick people into paying hidden fees or use "drip pricing," which lures consumers in with low prices, only to disclose the extra fees later on. 

In order to avoid engaging in this type of dark practice, the FTC said that companies should include any unavoidable and mandatory fees in the upfront, advertised price.  The FTC also said that companies shouldn't mislead consumers into thinking fees are mandatory when they are not.  Finally, the FTC warned marketers about treating consumers differently on the basis of race, national origin, or another protected characteristic. 

Design Elements that Lead to Unauthorized Charges

The FTC then described a type of dark pattern that uses design elements that "lead to unauthorized charges."  

The FTC said that, "Another common dark pattern involves tricking someone into paying for goods or services that they did not want or intend to buy, whether the transaction involves single charges or recurring charges."  In the report, the FTC gave an example of a marketer offering a free trial period, but then "unbeknownst to the consumer, the trial is followed by a recurring subscription charge if the consumer fails to cancel."  The FTC also expressed concerns about marketers that engage in practices that make it hard for consumers to cancel subscription services.  

The FTC said that, at a minimum, marketers should "make sure their procedures for obtaining consent include an affirmative, unambiguous act by the consumer."  The FTC also reiterated guidance from its negative option policy statement about what procedures to follow when consumers want to cancel an ongoing service. 

Design Elements that Obscure or Subvert Privacy Choices

Finally, the FTC said that another "pervasive dark pattern" is one that uses design elements to obscure or subvert consumers' privacy choices.  The FTC explained that, because of dark patterns, "consumers may be unaware of the privacy choices they have online or what those choices might mean."  

The FTC gave a number of examples of ways in which companies incorporate dark patterns into their products, including through the use of user interfaces that:  (1) do not allow consumers to definitively reject data collection or use; (2) repeatedly prompt consumers to select settings they wish to avoid; (3) present confusing toggle settings leading consumers to make unintended privacy choices; (4) purposely obscure consumers' privacy choices and make them difficult to access; (5) highlight a choice that results in more information collection, while greying out the option that enables consumers to limit such practices; and (6) include default settings that maximize data collection and sharing. 

The FTC said that marketers should "first and foremost, aspire to become good stewards of consumer personal information." The FTC explained that businesses should collect only the data they need.  The FTC said, "Businesses should collect the data necessary to provide the service the consumer requested, and nothing more."  In addition, the FTC said that marketers should take several steps to avoid subverting consumers' privacy choices.  First, they should "avoid default settings that lead to the collection, use, or disclosure of consumers' information in a way that they did not expect."  Second, they should "make consumer choices easy to access and understand."  Third, "choices about sensitive information, in particular, should be presented so that it is clear to the consumer what they are consenting to -- as opposed to a blanket consent -- and should be presented along with information that they need to make an informed decision."  And, finally, "businesses should take a moment to assess their user interfaces from a consumer's perspective and consider whether another option might increase the likelihood that a consumers' choice will be respected and implemented."