Understanding Dark Patterns: How To Stay Out Of The Gray Areas

We have all encountered them, in both our personal and professional lives. Think about the times you felt tricked or frustrated by a membership or subscription that had a seamless signup process but was later difficult to cancel. Something that should be simple and transparent can be complicated, intentionally or unintentionally, in ways that impair consumer choice. These are examples of dark patterns.

First coined in 2010 by user experience expert Harry Brignull, “dark patterns” is a catch-all term for practices that manipulate user interfaces to influence the decision-making ability of users. On darkpatterns.org, Brignull identifies 12 types of common dark patterns, ranging from misdirection and hidden costs to “roach motel,” where a user experience seems easy and intuitive at the start, but turns difficult when the user tries to get out.

In a 2019 study of 53,000 product pages and 11,000 websites, researchers found that about one in 10 employs these design practices. Though widely prevalent, the concept of dark patterns is still not well understood. Business and nonprofit leaders should be aware of dark patterns and try to avoid the gray areas they engender.

As U.S. FTC Commissioner Rohit Chopra recently said, “Dark patterns are the online successor to decades of dirty dealing in direct mail marketing.” Chopra, who President Biden recently nominated to serve as the Director of the Consumer Financial Protection Bureau, said dark patterns “pose an even bigger menace than their paper precursors.”

Like all things digital, dark patterns have no geographic or physical limitations, and consequently, can deceive people on a far greater scale. 

Where is the line between ethical, persuasive design and dark patterns? Businesses should engage in conversations with IT, compliance, risk, and legal teams to review their privacy policy, and include in the discussion the customer/user experience designers and coders responsible for the company’s user interface, as well as the marketers and advertisers responsible for sign-ups, checkout baskets, pricing, and promotions. Any or all these teams can play a role in creating or avoiding “digital deception.”

Lawmakers and regulators are slowly starting to address the ambiguity around dark patterns, most recently at the state level. In March, the California Attorney General announced the approval of additional regulations under the California Consumer Privacy Act (CCPA) that “ensure that consumers will not be confused or misled when seeking to exercise their data privacy rights.” The regulations aim to ban dark patterns — this means prohibiting companies from using "confusing language or unnecessary steps such as forcing them to click through multiple screens or listen to reasons why they shouldn’t opt out.”

At the federal level, in September 2020 the FTC issued a complaint against a company that operates a subscription service that serves content to young children for deploying “tricks to lure families into signing up for its service, and traps to prevent them from canceling.” In a statement about the case, FTC Commissioner Chopra said the FTC “needs to methodically use all of our tools to shine a light on unlawful digital dark patterns, and we need to contain the spread of this popular, profitable, and problematic business practice.”

The FTC is convening researchers, legal experts, consumer advocates and industry professionals at the end of April for a workshop to explore this issue further. Legislation has also been introduced in the U.S. Senate that would prohibit "manipulating a user’s interface to compel compulsive usage, including auto-play, for sites that are directed at users under the age of 13.”

Dark patterns have been on the radar of my organization, BBB National Programs, for several years, especially within our National Advertising Division (NAD). There are many practices that fall under the umbrella of "dark patterns," but the ones we have focused on the most are cases with misleading price presentation and obscured terms and conditions.

One example of this is our recommendation to Fabletics, an online retailer of fitness wear, offering discount prices with a “VIP membership” that required a monthly purchase of fitness wear. When consumers acted on the offer, the user interface took consumers through a long purchase flow, including a quiz about their size, style and fitness preferences before disclosing that a subscription was required to purchase the product at the advertised price. After NAD suggested the company apply FTC guidance on clear and conspicuous disclosures, Fabletics voluntarily modified these practices to disclose that its discounted prices were available only with a monthly subscription both in the initial sales offer and on its website when consumers viewed their athletic wear purchase options. 

As more states consider promulgating additional regulations, there is a need for greater accountability from within the business community. Dark patterns also can be addressed on a self-regulatory basis, but only if organizations hold themselves accountable, not just to legal requirements but also to industry best practices and standards:

1. Make clear when content is advertising, and avoid navigating consumers to a website with misleading links.
2. Collect personal information only after clearly disclosing what information is being collected and what will be done with it.
3. Design a consumer-focused user experience, which can take many forms. A consumer-focused user experience often includes:
   • Avoiding or limiting pre-checked options for upgrades, subscriptions and add-ons.
   • Eliminating fictitious claims such as “Jessica S. from Ann Arbor just bought 10 of these!” along with fake clocks or stock quantity counters.
   • Avoiding purchase screens that hide material terms of a purchase. Ideally, consumers should be able to see all purchase terms on a single screen, including costs associated with add-ons or other surprise fees. Following the FTC’s Dot Com Disclosures guidance can help businesses avoid many dark patterns related to misleading disclosures.
   • Avoiding designs that undermine consumer choice, including the use of text colors and placement that highlight or obscure choices, for example, a grayed-out button for rejecting privacy-protective options and a colorful, action-oriented button that provides less privacy protection.

Let us make earning consumer trust more than just a box-checking exercise. When building digital products and services, let us be vigilant about dark patterns, making it a constant practice to stay out of the gray areas, and to avoid the creation of them ourselves. 

Originally published on Forbes.