The FTC’s Crackdown on Dark Patterns: A Guide for Consumer-Facing Businesses
1. Background on Dark Patterns
In recent years, the Federal Trade Commission (FTC) has shown a marked increase in focus on curbing the use of dark patterns. Dark patterns are online design practices that trick or manipulate users into making decisions they would not otherwise have made and cause harm.
FTC Enforcement Policy Statement and Staff Report
In October 2021, the FTC issued an enforcement policy statement warning companies that it was ramping up its enforcement response to deceptive sign-up tactics. In September 2022, the FTC followed up with a Staff Report that pointed to specific practices it considered deceptive dark patterns.
FTC Notice of Proposed Rulemaking on Negative Option Offers
In April 2023, the FTC issued a Notice of Proposed Rulemaking (NPRM) that would significantly expand the legal requirements for sellers to employ so-called “negative option” offers.
2. FTC Enforcement Action Against Amazon
Complaint Against Amazon
On June 21, 2023, the FTC filed a complaint in the US District Court for the Western District of Washington alleging that Amazon used manipulative, coercive, or deceptive user interface designs—i.e., dark patterns—to trick consumers into enrolling in its Amazon Prime subscription service.
Allegations of Deceptive Practices
The FTC alleged that Amazon’s use of dark patterns violated Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act (ROSCA). Specific practices cited by the FTC included:
- Forced Action: Requiring consumers to enroll in Prime before completing a purchase.
- Interface Interference: Manipulating the user interface to privilege certain information over others.
- Obstruction (Roach Motel): Intentionally complicating the process of canceling a Prime subscription.
- Misdirection: Drawing a user’s attention to one thing to distract from another.
- Sneaking: Hiding relevant information or delaying its disclosure.
- Confirmshaming: Using emotive wording around disfavored options to guilt consumers into choosing favored options.
3. FTC Enforcement Action Against PCH
Complaint Against PCH
On June 27, 2023, the FTC announced an enforcement action and proposed consent order requiring Publishers Clearing House (PCH) to pay $18.5 million to consumers over allegations that PCH used dark patterns to mislead consumers about how to enter the company’s well-known sweepstakes drawings.
Allegations of Deceptive Practices
The FTC alleged that PCH violated the deception prong of the FTC Act and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). Specific practices cited by the FTC included:
- Linking and conflating ‘ordering’ products and ‘entering’ the sweepstakes through the use of trick wording and visual interference.
- Placing disclosures in small and light font and in places where a consumer is unlikely to see them.
- Bombarding consumers with emails that pressure them to take immediate action by clicking on the email or purportedly risk losing the opportunity to enter or win the sweepstakes.
- Making it difficult for consumers to enter the sweepstakes without an order.
4. Implications for Other Consumer-Facing Businesses
Implications for Companies
The Amazon and PCH actions provide important clarity on the types of design practices the FTC considers to be unfair, deceptive, or otherwise unlawful dark patterns. Companies can take steps to ensure they are appropriately identifying and controlling for design-related risks in the current regulatory environment, including:
- Reviewing enrollment/sign-up flows to identify and mitigate risks associated with potential dark patterns.
- Examining cancellation flows to ensure they provide a simple mechanism for consumers to cancel subscriptions.
- Ensuring clear disclosures around subscription plans, including material terms and actions required to avoid charges.
Open Questions and Regulatory Uncertainty
There are open questions as to the viability and scope of the FTC’s determination that dark patterns are illegal. The FTC may be able to prove that a practice that meets its definition of a dark pattern is unfair or deceptive based on the specific facts of a given case, but it is not enough to show that a fact pattern meets the definition of “forced action” or “confirmshaming.” Additionally, the FTC’s aggressive enforcement of practices considered dark patterns, including widely used practices, presents something of a departure from its prior practice and understanding, creating regulatory uncertainty for businesses.
The FTC’s recent enforcement actions against Amazon and PCH signal a clear priority for the agency in curbing the use of dark patterns. Companies should take a careful but realistic view of their sign-up and cancellation flow processes to avoid regulatory uncertainty and risk. The litigation of the Amazon complaint and the course of the NPRM on negative option offers will provide further clarity on the FTC’s continued tack of aggressive enforcement.