Dark Patterns Cannot Stay in the Dark

TurboTax reportedly tricked consumers into paying for tax filing services even if they were entitled to free tax filing services. And Google reversed a design change after receiving backlash for allegedly making search results and advertisements indistinguishable, leading more consumers to click on paid links. More companies are attracting attention for using dark patterns, which are online strategies that can influence people into doing things they did not intend. These dark patterns do not accidentally frustrate or distract online users but often manipulate consumers by design. Harry Brignall coined the term “dark patterns” in 2010. His original list of 12 dark patterns includes wording questions to confuse consumers, adding hidden costs at the last step of a checkout process, and charging credit cards automatically when a free trial service ends. Over the past decade, scholars have developed extensive descriptions and taxonomies of other dark patterns that harm consumers. Dark patterns present a problem because companies leverage these online strategies to promote their own interests at the expense of consumers. Dark patterns harm individuals by manipulating them into spending more money, disclosing more personal information, and expending more time, energy, and attention than they originally intended. Most dark patterns undermine individual autonomy and lead people to make choices they would not have otherwise made. In terms of collective welfare, dark patterns can also hurt competition, price transparency, and trust in markets. Recognizing these harms, California, Colorado, and Connecticut now ban companies from using dark patterns to gain consent from consumers for obtaining personal data. At the federal level, the bipartisan DETOUR Act would prohibit online platforms with over 100 million users from using dark patterns. Even without legislation targeting dark patterns, the Federal Trade Commission (FTC) has brought successful enforcement actions against them using its authority to regulate “unfair and deceptive acts and practices.” To examine dark patterns further, the FTC held a workshop in April 2021 that discussed definitions, potential rules, and disproportionate impacts on consumers based on race, income, and age. In this week’s Saturday Seminar, we collect scholarship that focuses on the prevalence of dark patterns, their effects, and options for further regulation