Dark Grounds: A New Legal Norm or Just a Catchy Name? (Second part)


In the first part of this discussion, we provided information on the concept of dark motives and analyzed some recent examples of the application of the AG state. We have concluded that in alleging dark patterns, state attorneys general are primarily relying on existing precedents governing deception and injustice, but are also trying to push the envelope. While previous precedents focused primarily on false and hidden information, some of the state’s current allegations lean more toward coercion and obstruction of willful action.

In this article (Part 2), we examine the FTC’s approach to this issue, now and in the past. Here, we conclude that, despite the new terminology, the practices that make up today’s dark patterns have been staples of FTC law and policy for years. So far – and we emphasize until now – Dark patterns are a catchy (and catch-all) name for a variety of long-standing and well-known practices that inspire people to make choices they otherwise wouldn’t.

Dark grounds today

Over the past year, the primary actions the FTC has taken regarding dark patterns have been to (1) hold a workshop on the subject (2) issue a policy statement on their use in negative option marketing, and (3) announcing that the FTC’s planned regulation of “surveillance-based business models” will address dark patterns.

The workshop identified a range of conduct categorized as dark patterns, some of which are classic deceit (for example, not disclosing upfront fees) and some of which would be more over the top under existing law (for example, a denigrating language a particular choice, such as “No thanks, I don’t want to save money.”) At the time of this writing, the FTC has not released a report on the workshop and has not announced any cases challenging practices in the “stretching” category.

Meanwhile, the policy statement on negative option marketing (described in the FTC press release as part of a “ramp up” on dark patterns) is largely a business brief. Prior Acts Based on the FTC Act, the Online Trust Restoration Act, the Telemarketing Sales Act Rule, and other laws and rules. The extensive precedent he cites—which includes dozens of cases involving misleading or hidden disclosures, as well as cumbersome cancellation and refund procedures—demonstrates the FTC’s long track record in combating dark patterns, regardless of either their name.

Finally, the development of rules to combat “surveillance” and dark patterns has not yet been launched.

Dark patterns of yesteryear

A trip down memory lane reveals an abundance of other FTC actions (beyond negative option marketing) to address tricks and obfuscation now known as “dark patterns.” Here are some of them:

  • Bait and Switch Guides. First promulgated in 1967, these guides interpret how Section 5 applies to advertising that “lures” consumers with an “alluring but insincere offer” to sell something else, usually at a higher price or under less favorable conditions for the consumer. The guides identify as illegal a range of practices that steer consumers toward the least desirable option – including disparaging the advertised product, refusing to take orders for it, and difficulties and delays in refunding this one.
  • CAN-SPAM Law/Rule: This law and rule from the early 2000s prohibits misleading email header information, which tricks consumers into opening the email and requires senders to provide recipients with an easy way to unsubscribe from future emails.
  • “Clear and visible” requirement: This requirement, which has appeared (in one form or another) in FTC rules and orders for decades, is designed to ensure that material disclosures (including mechanisms for obtaining consumer consent) are not hidden or drowned out by larger advertising claims or confusing text. . It requires, among other things, that such disclosures, “by size, contrast, location, [and] the duration of appearance” stand out from the accompanying text so that they are “easily noticed, read and understood”. Further, disclosures cannot be contradicted by anything else in the communication.
  • Ticketmaster Suitcase: In this 2010 case against a major ticket seller, the FTC alleged that the company used bait-and-switch advertisements, combined with a deceptive website interface, to trick buyers into clicking on a link that took them to an affiliated ticket reseller who charged higher prices.
  • In the case of in-app purchases: In a series of cases against Apple, Google and Amazon in 2014, the FTC alleged that app stores (1) offered “free” games to children that included incentives for them to make in-app purchases, but (2) failed to disclose to parents that entering a password allowed unlimited purchases for a certain window of time.
  • MD case of payments: In this 2015 case against a payment portal, the FTC accused the portal of using a confusing interface and registration system to trick consumers into signing up for a separate service that harvested their private medical information.

Of course, just because “dark patterns” aren’t new to the FTC doesn’t mean they aren’t important. On the contrary, it means that the FTC’s renewed interest in this area is based on strong precedents and deserves attention. Just as we’ve noted with respect to government efforts here, companies should take extra care in the design of their disclosures, purchase flows, cancellation methods, and other communications to avoid spoofing techniques. marketing that crosses the line into dark patterns.

We will continue to monitor this issue on the state and federal fronts and post updates as they occur.


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