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Shining A Light on Dark Patterns: The FTC's New Enforcement Policy

November 11, 2021
Shining A Light on Dark Patterns: The FTC’s New Enforcement Policy

In April of this year, the Federal Trade Commission (FTC) held a workshop on “dark patterns”-a term that has been used to describe a range of potentially manipulative user interface designs used on websites and mobile apps. 

Sandy Brown, the FTC’s Assistant Director of Bureau of Consumer Protection’s Division of Financial Practices, spoke about this topic during COMPLY Summit and warned companies that practices involving dark patterns will continue to be a subject of FTC scrutiny, investigation, and enforcement actions. And now, we’re seeing this come to light with the Commission’s new enforcement policy statement regarding dark patterns.

The Problem With Dark Patterns

Dark patterns are psychological tricks and digital design tactics that steer consumers in a particular direction; deceiving them and overriding their exercise of free choice. At their worst, says Sandy, dark patterns can manipulate consumers into taking unintended or harmful actions. 

These tactics are not new-the FTC has been seeing and taking action against these for a while, says Sandy. The workshop was aimed to take a closer look at how old tricks and tactics (from direct mailers, for example) have proliferated online and have been repurposed on the digital marketplace. 

The overarching takeaway from the workshop, according to Sandy, is that new technologies (like A/B testing and AI) are allowing marketers to quickly and cheaply test, refine, and personalize UIs with the goal of maximizing clickthrough and consent to data. Combined with increased tracking and behavior, this means that companies can track and target consumers when they’re at their lowest.

These dark patterns affect all consumers, but the workshop panelists expressed their concern for these specific groups:

  1. Marginalized communities and people of color: These communities have long been targeted by unscrupulous companies and dark patterns give those companies a potent tool to prey on those communities even further.
  2. Kids and teens: Platforms are using dark patterns to gain and keep children’s attention, which raises concerns about unhealthy usage and the sale of digital merchandise (such as in games) without their parents’ consent.


Watch this snippet from COMPLY Summit to hear Sandy Brown talk more about
dark patterns and why they will continue to be a subject of FTC scrutiny.


Ramping Up Enforcement

Under the new policy, there are 3 things organizations must do to avoid enforcement actions and civil penalties.

  • Clear and conspicuous disclosures of all material terms, including how much it costs, deadlines by which the consumer must act to stop further charges, the amount and frequency of such charges, how to cancel, and information about the product or service itself that is needed to stop consumers from being deceived about the characteristics of the product or service. In simplest terms, for these disclosures to be considered clear and conspicuous, they should be difficult to miss (or unavoidable) and easy to understand.
  • Obtain express written and informed consent before charging the consumer, including obtaining the consumer’s acceptance of the negative option feature separately from other portions of the entire transaction.
  • Make cancellation simple. The rule of thumb is that the cancellation mechanism should be at least as easy to use as the method the consumer used to buy the product or service in the first place.

“Today’s enforcement policy statement makes clear that tricking consumers into signing up for subscription programs or trapping them when they try to cancel is against the law. Firms that deploy dark patterns and other dirty tricks should take notice.”
– Samuel Levine, Director of the FTC’s Bureau of Consumer Protection

Learn more about Consumer Protection, the FTC, and other regulations here.

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