On July 10, 2024, The Federal Trade Commission and two international consumer protection networks announced the results of a review of selected websites and apps that showed a large percentage of the websites and mobile apps examined may use dark patterns, digital design techniques that may manipulate consumers into buying products or services or giving up their privacy. These techniques can steer consumers to take actions they would not otherwise have taken, according to the Commission.
The International Consumer Protection and Enforcement Networkâs (ICPEN) review took place in early 2024 and examined the use of possible dark patterns by hundreds of websites and mobile apps that offered subscription services from companies across the globe and in multiple languages.
Officials from 27 authorities in 26 countries participated. Nearly 76% of the sites and apps examined as part of the review employed at least one possible dark pattern, and nearly 67% used multiple possible dark patterns. It was not reported whether these identified practices were used in an unlawful way or violated the laws of the affected countries.
Participants examined several types of dark patterns, using descriptions of the practices as set out by the Organization for Economic Cooperation and Development. The potential dark patterns most often encountered during the review were âsneaking practices,â which involve hiding or delaying the disclosure of information that might affect a consumerâs purchase decision, and âinterface interference,â techniques such as obscuring important information or preselecting options that frame information in a way that steers consumers toward making decisions more favorable for the business.
ICPEN coordinated its review with the Global Privacy Enforcement Network, a network of more than 80 privacy enforcement authorities. GPENâs review – in which FTC attorneys also participated – focused on websites and apps using design patterns that may encourage individuals to provide more personal information than they intended.
Like the ICPEN review, the 26 privacy authorities participating in the GPEN review of sites operating in various countries found that the majority of websites and apps examined used at least one potential dark pattern. While there were no findings as to whether any of these instances rose to the level of law violations, the collaboration underscores the ways dark pattern techniques may impact not just consumersâ wallets but also their privacy choices, according to the FTC announcement.
The FTC announcement coincides with the FTC officially assuming the 2024-2025 presidency of ICPEN, an international network of consumer protection authorities from more than 70 countries that protects consumers around the world by sharing information and encouraging global enforcement cooperation among consumer protection authorities. The FTCâs presidency will follow the presidency of Polandâs Office of Competition and Consumer Protection.
The FTC has worked for many years to identify and crack down on businesses that deploy deceptive and unlawful dark patterns. In 2022, the FTC released a staff report, Bringing Dark Patterns to Light, which detailed a wide range of dark patterns.
FTC lawyers work with counterpart agencies to promote sound antitrust, consumer protection, and data privacy enforcement and policy.
Richard B. Newman is an FTC investigation and defense attorney at Hinch Newman LLP. Follow FTC defense lawyer on National Law Review.
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