![]() Interfaces that purposely obscure privacy choices and make the privacy choices difficult to view (such as placing links to privacy disclosures in a font size or color that makes them difficult to see) or otherwise access (such as settings “buried in a privacy policy”).Interfaces that present confusing toggle settings that lead users to make unintended privacy choices.Interfaces that repeatedly prompt users to select settings they have already declined.For example, the FTC’s staff report flags various examples of privacy-related practices that may constitute dark patterns, by obscuring or subverting privacy choices: Dark patterns raise particular concerns in the enforcement context because, by nature, dark patterns are discreetly implemented and may not be obvious to the average user. Further, the FTC notes that dark patterns are not limited to certain industries and contexts, but can be found on children’s apps, cookie consent banners, and ecommerce sites. The FTC observes that dark patterns are frequently used in combination, giving the dark patterns a stronger effect than if a single dark pattern was used alone. ![]() The FTC views these dark patterns as concerning because they may impair consumer choice, whether intentionally or unintentionally. The FTC uses the term “dark patterns” to describe a range of design practices on website and mobile app interfaces that trick or manipulate users into making choices they would not otherwise make and that may cause harm. This past fall, the FTC issued a staff report on dark patterns, Bringing Dark Patterns to Light. ĭark patterns are no longer bypassing legal challenge and over recent years, the FTC has regularly invoked the concept of “dark patterns” in the context of Section 5 of the FTC Act for unfair or deceptive practices. Over time, he observed that many businesses implemented dark patterns “by mistake or misadventure,” and that they often viewed these changes as “improvements” to interfaces. In his original piece, Brignull suggested that deceptive user interfaces are common on the web because dark patterns may be subtle and unnoticeable: “in isolation they’re usually so small that each one is barely annoying enough for people to do anything about them.” While dark patterns may be just “barely annoying” for an individual user, he noted that dark patterns tend to perform well for businesses, and that these subtle interface designs tended to escape legal scrutiny. The term “dark patterns” was reportedly coined in 2010 by Harry Brignull, a user interface designer, and the term has since been increasingly and formally adopted by privacy advocates and regulators. WHAT IS MEANT BY “DARK PATTERNS” IN THE PRIVACY CONTEXT? In this article, we examine the developing dark pattern regulatory enforcement landscape from a data privacy perspective, with a focus on recent U.S. The “dark patterns” concept also provides a tool for regulators and legislators to challenge practices that they believe undermine meaningful consumer choice. In this pursuit, regulators and privacy advocates increasingly utilize the term “dark patterns” as an umbrella concept to describe the wide array of activities that may be considered manipulative design in user interfaces. ![]() Privacy regulators are increasingly looking beyond a company’s privacy policy to scrutinize the user interface of its websites, apps, and other online services, and challenging designs that they view as manipulating consumer choice.
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