Dark patterns can manipulate online shoppers into spending more

Have you ever used your credit card to make an online purchase and ended up buying more than you intended or paying a higher price than you expected? Then you can become a victim of the so-called “dark patterns”. Marketers have always sought to manipulate consumers into buying their products, and the digital age has provided them with a new canvas that allows them to use a wider range of tricks to do so.

Harry Brignull, a user interface designer credited with coining the term “dark patterns” and founder of darkpatterns.org, calls it manipulative software design, “that forces users to perform an action they would not otherwise do if they understood. that or was the choice at the time.”

Manipulation through dark patterns leads to a decrease in individual well-being, as consumers cannot realize their real preferences. It also reduces public welfare as it helps dominant businesses collect data and reduce competition, thereby maintaining their market share.

With online shopping on the rise, especially since the pandemic, credit card users need more protection from this kind of manipulation. Legislation has been passed to combat this marketing model, and the Federal Trade Commission (FTC) is also looking to crack down on such gimmicks more actively.

Examples of dark patterns

Speaking at an FTC seminar on dark patterns, Brignull likened the practice to running a business that can increase sales by 21% by getting consumers to press a specific button. It would be “easy” for business, and that is what is behind the dark patterns.

An up-to-date example of dark patterns is how airlines have responded during the pandemic when flights around the world have been canceled and they have received refund claims from travelers. Their websites were not designed to encourage consumers to ask for refunds. Instead, a button that consumers could easily click directed them to receive a voucher or rebook their ticket to a later date.

Finn Lützow-Holm Mirstad, director of digital policy at the Norwegian Consumer Council, said at the FTC workshop: “And both of these options effectively give the airline an interest-free, unsecured loan. If you wanted to get your money back, compensation, many airlines would have an invisible button with very small print, far down on the website, and you would have almost no way to click on it.

In another example, food delivery company Instacart was sued for adding 10% to consumer bills by presenting it as a tip for delivery people. There was an obscure link on his website that allowed consumers to opt-out of this fee, which went to Instacart and not to the delivery people.

There are many ways to manipulate online shoppers. This includes:

• Making consumers jump through hoops to give up something
• Online forms that trick consumers into providing information they did not intend to provide
• Websites that steal items into your shopping cart, perhaps using the opt-out option on the previous page that you missed.
• It will be difficult for you to compare the prices of products so that you cannot make the right decision.
• Charging costs such as taxes or shipping fees or other incidental charges at the end point of checkout (hidden fees are especially problematic for hotel and travel websites).
• Charged to your credit card without prior notice after the expiration of the free subscription
• Gaining access to email or social media under the guise of looking for friends and then spamming them

Legislation against dark patterns

Regulators monitor such manipulations and make efforts to eliminate them. For example, Senators Mark Warner and Deb Fisher introduced the “Deceptive Internet User Reduction Act” or the DETOUR Act in 2019. The overall goal of this ruling is to “prohibit the use of exploitative and misleading practices by large online operators.” and promote consumer well-being in the use of behavioral research by such providers.”

The law prohibits designing or modifying the user interface so that it interferes with consumer autonomy to obtain consent or data from consumers.

It also prohibits online segmentation of consumers into groups for the purpose of behavioral research without their permission.

And it prohibits the practice of tampering with the user interface to engage children under the age of 13 in intrusive use.

In email comments, Sean O’Brien, founder of the Yale Privacy Lab (and lecturer in cybersecurity at Yale Law School), noted, “The DETOUR Act is a positive step forward, especially when it comes to informed consent and attempts to address user interfaces that lead to compulsive use by children under the age of 13. Given the difficulty of proving, for example, that A/B testing takes place in a shopping cart environment and that such manipulation has not been agreed upon, I worry the law will be difficult to apply to real cases.”

FTC empowered to pursue unfair and misleading dark patterns

The DETOUR Act allows the Federal Trade Commission to prosecute violations of this rule as dishonest and misleading acts. The FTC can also charge online businesses that deceive consumers into charging recurring fees, under the Online Shopper Confidence Restoration Act. And the CAN-SPAM Act requires marketers to provide consumers with an easy way to opt out of email communications.

In a statement condemning the practice of obfuscation on the Internet (during the case against Age of Learning), Rohit Chopra, then FTC commissioner, said: “Digital deception should not be a viable American business model. If the FTC is to become a credible watchdog of the digital markets, the agency must use these tools to go after big firms that make millions or even billions by defrauding and trapping users with dark schemes. We cannot replicate the “hit the mole” strategy we have used on pressing issues such as fake reviews, digital disinformation and data protection.”

California has been at the forefront of online consumer privacy with the passage of the California Consumer Privacy Act in 2020. In April 2021, the state also amended this law to provide protection against dark patterns. Taking it one step further, the state passed the California Privacy Rights Act (CPRA) (due in 2023), which further protects against dark patterns, as well as creating a law enforcement agency called the California Privacy Protection Agency. First, the CPRA gives consumers the right to opt out of sharing personal information.

Difficult to enforce laws against dark patterns

While it is encouraging that various regulatory options are seeking to limit shady practices, they face challenges in combating them. First, it is difficult to test interfaces to determine if they are being manipulated. And this kind of deception is unlikely to attract the attention of internal whistleblowers.

Jennifer Rimm, Assistant Attorney General for the District of Columbia, noted at an FTC workshop, “The proliferation and sheer variety of dark patterns by themselves make it difficult for state enforcers to effectively identify the most serious offenders and eliminate those offenders through targeted action.” law enforcement action. In addition, a feature of dark patterns is that they are covert or misleading, meaning that consumers may not realize they are being manipulated, or they may become addicted to these dark patterns due to their prevalence.”

It seems like dark patterns are more common in apps and smartphones than websites, given that they’re harder to spot on a smaller screen. It is also an obstacle to law enforcement. At an FTC workshop, Joanna Gunawan, a doctoral student at Northeastern University, shared: “If the audit only looked at the desktop site, they might think the service is up to par and provides users with effective methods to delete their accounts when reality is mobile.” users will be completely different.

Another deterrent to following dark schemes is concern over whether businesses can invoke First Amendment commercial free speech protections in their defense, as some of these manipulations fall into a gray area, Lior Strahilewitz, Professor law school at the University of Chicago. observed at the FTC workshop.

O’Brien of Yale University believes this is not always the case. He said: “I do not think it likely that a First Amendment suit will protect businesses that engage in price fixing, discriminatory pricing, and behavioral or psychological manipulation. However, I see the main problem in proving tangible harm to the consumer – as with privacy laws in the US, this bar can be difficult to meet.

For consumers who feel they have been misled by dark schemes, until better laws are developed, it seems that one way out is to file a complaint with the Federal Trade Commission or the Consumer Financial Protection Bureau (in the case of financial products or services).

bottom line

The digital age has provided marketers with many ways to get consumers to give up their data and money through manipulative software design. Legislators are picking up on such practices and developing measures to protect consumer rights.

However, it is not clear how such laws will work in practice. In the meantime, you can always file a complaint with the FTC or CFPB if you believe you have been the victim of unfair or misleading e-commerce practices.