Last week, the FTC announced its release of a staff report discussing key topics from the April 29, 2021 workshop addressing dark patterns. The report states that the FTC will take action when companies employ dark patterns that violate existing laws, including the FTC Act, ROSCA, the TSR, TILA, CAN-SPAM, COPPA, ECOA, or other statutes and regulations enforced by the FTC. The report highlights examples of cases in which the FTC used its authority under these laws and regulations to bring enforcement actions against companies that allegedly used dark patterns. Accordingly, the report builds upon the FTC’s historical approach of using its existing authority to bring enforcement actions in this context.

The report also includes a list of mechanisms that the FTC alleges are dark patterns.  While the FTC explained how some of these are unlawful, the report was unclear whether or how others violated any of the laws above.  As Commissioner Wilson noted:

The term ‘dark patterns’ deserves a few words of explanation. It certainly sounds ominous – but as the report explains, not all dark patterns are unlawful. … While the use of this term may be relatively new and attention grabbing, at its core the term describes practices that have  long been the focus of FTC enforcement actions. For example, the agency has prosecuted companies that used ads deceptively formatted to look like news articles to drive sales;… sued websites and apps that obscured or hid fees;… and challenged efforts by companies that prevented customers from canceling memberships… Rules of thumb and decision-making shortcuts have value. And companies legally can capitalize on common heuristics in ways that increase profits.

The below bullets include categories of dark patterns in italics and specific examples in plain text.

  • Inducing false beliefs: advertisements that are formatted to look like news articles or falsely suggest impartiality.  The FTC already regulates such practices as deceptive, based on its native advertising enforcement.
  • Hiding or delaying disclosure of material information: hiding fees or including them at the end of a purchase flow only.  The FTC previously has brought numerous cases alleging such practices are deceptive in violation of Section 5 of the FTC Act.
  • Leading consumers to unauthorized charges: offering a free trial, which precedes a recurring subscription charge if the consumer fails to cancel, or advertising a game as free when the game permits in-app purchases.  Likewise, the FTC has brought actions involving such practices previously as violations of ROSCA and Section 5. 
  • Subverting privacy choices: graying out disfavored options, failing to provide sufficient notice of default settings, or conveying a false affiliation to manipulate consumers into sharing information. 
Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the…

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the U.S. Congress, and other federal and state regulators on a proactive basis, she has experience helping clients respond to informal investigations and enforcement actions, including by self-regulatory bodies such as the Digital Advertising Alliance and Children’s Advertising Review Unit.

Ms. Tonsager’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, behavioral advertising, e-mail marketing, artificial intelligence the processing of “big data” in the Internet of Things, spectrum policy, online accessibility, compulsory copyright licensing, telecommunications and new technologies.

Ms. Tonsager also conducts privacy and data security diligence in complex corporate transactions and negotiates agreements with third-party service providers to ensure that robust protections are in place to avoid unauthorized access, use, or disclosure of customer data and other types of confidential information. She regularly assists clients in developing clear privacy disclosures and policies―including website and mobile app disclosures, terms of use, and internal social media and privacy-by-design programs.