But What Do Dark Patterns Actually Look Like?
by: John Allaire
Last September, the FTC released a report titled “Bringing Dark Patterns to Light” that describes the myriad of ways in which companies allegedly trick or manipulate consumers into making choices they would not otherwise make through the use of certain design practices. The report makes note of what dark patterns look like in practice, dividing them into eight primary categories and giving examples of each.
In June of this year, the FTC filed a complaint against Amazon for using “dark patterns” that allegedly cause consumers to enroll in Prime without their consent, in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act. The complaint also alleged that Amazon knowingly complicated the cancellation process for subscribers who sought to end their membership. These deceptive design practices are examples of what the FTC’s September 2022 report calls “coerced action” and “obstruction.”
And, as we covered in an earlier blog post, the FTC recently applied its “dark patterns” enforcement to sweepstakes. At this point, we think it is important for people to understand what regulators think these tactics actually look like. In this first “But What Do Dark Patterns Actually Look Like?” post, we’re showcasing examples from the FTC’s complaint against PCH, a direct marketing company that markets merchandise and magazine subscriptions with sweepstakes and prize-based games.
The FTC’s complaint notes that although Publishers Clearing House is required to allow consumers to participate in its sweepstakes promotions without purchasing a product, PCH allegedly used deceptive and manipulative statements and user interface designs to deceive consumers into believing that they must order products before they can enter a sweepstakes or that ordering products increases their odds of winning a sweepstakes.
The following image appeared on PCH’s website on July 21, 2021.
As we can see, PCH’s “Official Entry Form” clearly states “It’s Free- Enter Now” and then provides a text box for participants to enter their information. However, at this point, PCH does not process consumers’ sweepstakes entries.
Instead, they direct some applicants whom they deem “e-commerce qualified” to several shopping pages featuring products for sale, including magazine subscriptions. They direct other applicants to play online games and/or view numerous third-party advertisements prior to allowing consumers to enter the sweepstakes. Here is an example of what users may see after they fill out the form and click “WIN IT!”
After participants submitted their entry, PCH would send out an email allegedly designed to confuse customers, making them believe they had to take an additional step in order to enter the sweepstakes. Here, at the top right of the page in bold and red font, participants would see a message that reads “Final Step Required.”
Then, when participants clicked on “Act Now” in an attempt to finalize their entry, PCH would expose them to pages and pages of alleged dark patterns and deceptive sales pitches.
Takeaways
A proposed order requires Publisher’s Clearing House to overhaul its sweepstakes entry and sales processes, stop surprise fees, and pay $18.5 million to consumers who were harmed. With the FTC honing in on “dark patterns”, it is essential for companies to be wary of using interfaces and processes that could confuse consumers. In the case of sweepstakes, this also includes adding additional steps for consumers that may not be required. If you have any questions about “dark patterns”, please don’t hesitate to reach out.
Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.