Bringing Dark Patterns to Light: An FTC Workshop

The Federal Trade Commission hosted a virtual workshop on April 29, 2021 to examine digital “dark patterns,” a term that has been used to describe a range of potentially manipulative user interface designs used on websites and mobile apps.

“Bringing Dark Patterns to Light: An FTC Workshop” explored the ways in which user interfaces can have the effect, intentionally or unintentionally, of obscuring, subverting, or impairing consumer autonomy, decision-making, or choice. For example, some sites sneak extra items into a consumer’s online shopping cart, or require users to navigate a maze of screens and confusing questions to avoid being charged for unwanted products or services.

The FTC workshop brought together researchers, legal experts, consumer advocates, and industry professionals to examine what dark patterns are and how they affect consumers and the marketplace. Some of the topics the workshop examined included:

• how dark patterns differ from sales tactics employed by brick-and-mortar stores;
• how they affect consumer behavior, including potential harms;
• whether some groups of consumers are unfairly targeted or are especially vulnerable;
• what laws, rules, and norms regulate the use of dark patterns; and
• whether additional rules, standards, or enforcement efforts are needed to protect consumers.

The workshop will be held virtually and webcast on the FTC’s website at FTC.gov. A link to the webcast will be posted to FTC.gov and the event page shortly before the workshop begins. Registration is not required to watch the workshop. The final agenda and list of speakers is posted below.

To assist the agency’s analysis of this issue, the FTC seeks public comments on the following topics to be discussed at the workshop. The FTC is particularly interested in data, studies, research, and other empirical evidence addressing these issues. Interested parties may submit comments electronically at Regulations.gov. The deadline for submitting comments is May 29, 2021.

1. Defining Dark Patterns. What is a dark pattern? Is there an accepted definition of the term? What features do dark patterns have in common, and how do they differ? How do dark patterns differ from other types of persuasive technology and techniques (e.g., design features known as “nudges”)? How do dark patterns differ from analogous sales and advertising tactics in the brick-and-mortar context? Are they different in scale, in kind, or both?
2. Prevalence of Dark Patterns. How prevalent are dark patterns in the marketplace? Are there particular industries, subsets of industries, or stages of companies (e.g., startups) where dark patterns in general or specific dark patterns are especially prevalent or, conversely, where participants are unlikely to use dark patterns? Are dark patterns more prevalent on certain platforms or mediums (e.g., mobile apps, video games, social media platforms)?
    
3. Factors Affecting Dark Pattern Adoption. What factors influence a company or organization’s decision to employ dark patterns? What role has A/B and other user experience testing played in the development and spread of dark patterns? How has “growth hacking” and related strategies contributed to dark patterns? Why do many companies employ the same or similar dark patterns?
4. Dark Patterns and Machine Learning. How are artificial intelligence and machine learning affecting dark patterns? Is there empirical evidence of companies using artificial intelligence or machine learning to personalize and serve dark patterns to individual consumers or specific groups of consumers?
5. Effectiveness of Dark Patterns. How effective are dark patterns at influencing consumer choice, decision-making, or behavior? Are some dark patterns more effective than others? Which ones are most effective? What makes them more effective?
6. Harms of Dark Patterns. What harms do dark patterns pose to consumers or competition? For example, do certain dark patterns lead consumers to purchase products or services that they might not otherwise have purchased, pay for products or services without knowing or intending to, provide personal information, waste time, spend more on a particular product or service, remain enrolled in a service they might otherwise cancel, or develop harmful usage habits? Are any groups of consumers more likely than others to be affected by dark patterns (e.g., young children, teens, older adults, persons with low income)? Do dark patterns have a disproportionate impact on consumers of color or other historically disadvantaged groups? Do dark patterns have any pro-consumer or pro-competition benefits? What are they?
7. Consumer Perception of Dark Patterns. How able are consumers to detect dark patterns? Are consumers able to detect some dark patterns better than others? Even when consumers detect a dark pattern, are they likely to understand how it is influencing their behavior? Do any disclosures made in connection with dark patterns help consumers detect and avoid them?
8. Market Constraints and Self-Regulation. Do market forces (e.g., competition and reputational concerns) sufficiently prevent companies from using harmful dark patterns? How responsive are companies to the potential reputational effect of being labeled as having used a dark pattern by organizations such as DarkPatterns.org? What self-regulatory measures are companies and other stakeholders taking to mitigate the harms of dark patterns? Are there any industry standards regarding the use of dark patterns? How is compliance with any such standards monitored and enforced?
9. Solutions. What would effective prevention, mitigation, and remediation of the harmful effects of dark patterns look like? What role can industry play in preventing, mitigating, and remediating the harmful effects of dark patterns? What types of dark patterns or use cases of dark patterns should the FTC and other government regulators focus on when bringing enforcement actions and engaging in other initiatives to combat dark patterns that are deceptive or unfair, or violate the law in other ways? Given that consumers may be unaware of dark patterns’ effects on their behavior and decisions and therefore less likely to complain, what can the FTC and other regulators do to identify and combat deceptive, unfair, or otherwise unlawful dark patterns?