United States: FTC workshop signals increased regulatory focus on dark models
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On April 29, 2021, the Federal Trade Commission (FTC) hosted a virtual conference workshop, entitled “Highlight dark patterns, “to examine” dark patterns. “Several examples of dark patterns, including confusing cancellation procedures that force users to navigate multiple screens, online applications that hide important terms of a product or business. service through the use of discreet drop-down links and automatic scrolling features, and the addition of products to users’ carts without their knowledge or consent.
The workshop explored topics such as design practices that constitute digital dark patterns, the impact of dark patterns on consumers – and in particular on groups that may be particularly susceptible to manipulation, such as children, older people or communities of color – and future strategies. that the FTC can take to deal with the gloomy patterns.
As many panelists noted throughout the workshop, dark patterns are not new to the market or under government scrutiny. The FTC has worked for years to combat unfair and deceptive design practices through its authority under Section 5 of the FTC and laws such as the Restoring Confidence In Online Shopper Act. States have also taken coercive action linked to the dark patterns. Jennifer Rimm, Assistant Attorney General in the District of Columbia’s Attorney General’s Office, spoke about recent consumer protection lawsuits brought by her office against delivery companies, hotels and social media platforms for dark trends such as inadequate charge disclosures, bait-and-switch tactics that hamper consumers’ ability to shop around and hard-to-find privacy settings.
Speakers also discussed how federal and state legislatures have attempted to address dark trends by expanding the power available to take enforcement action. In their opening remarks, US Senator Mark Warner and Congresswoman Lisa Blunt Rochester signaled their intention to incorporate the ideas from the FTC workshop into future legislative efforts. The two lawmakers previously introduced the Reduction of Misleading Experiences for Online Users Act (DETOUR) in the Senate and lodge, respectively, which would have prohibited large online platforms from using intentionally deceptive interfaces to extract data from online users. Additionally, states have begun to tackle the dark patterns with consumer protection laws like the California Consumer Privacy Act (CCPA). In March, the California Attorney General released amendments to the CCPA application regulations prohibit the use of exclusionary methods which are “designed for the purpose or [have] the substantial effect of subverting or hindering a consumer’s choice to opt out ”- such as:
- Use confusing language, such as double negatives (eg, “Do not sell my personal information”);
- Require consumers to click or listen to the reasons why they should not submit an opt-out request before confirming their request; or
Last November, California voters also ratified the California Privacy Rights Act, which, among other things, revises the CCPA’s definition of consent to exclude any consent obtained through the use of dark grounds.
In his closing remarks, Daniel Kaufman, acting director of the FTC’s Office of Consumer Protection, declined to commit the agency to issuing additional rules, policy statements or enforcement guidance, but said warned that nothing was out of place and that companies should expect continued aggression. law enforcement against the use of dark grounds at the federal and state levels.
The FTC is still seeking public comment on the following topics until May 29, 2021:
- Define dark patterns;
- Prevalence of dark patterns;
- Factors affecting the adoption of dark patterns;
- Dark models and machine learning;
- Effectiveness of dark patterns;
- Harms of dark patterns;
- Perception of dark patterns by consumers;
- Market constraints and self-regulation; and
Additional information on the above topics and how to submit comments is available here.
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