How Might Developing a Program of “Light Patterns” Guard Against a Potential “Dark Patterns” Claim?
January 17, 2023
Stroock Client Alert
By: Stephen J. Newman, Allen H. Denson, Alina Edep
The Federal Trade Commission (the “FTC”) has recently shed new light on a growing area in consumer protection in the digital age: “dark patterns,” which have been described as website or mobile application design elements that tend to trick or manipulate users into making choices they would not otherwise have made. In our three previous articles on this subject, we have covered the recent Vonage and Epic Games settlements for $100 million and $245 million, respectively; methods businesses can use to stay in compliance with rules on dark patterns; and the potential First Amendment implications of dark patterns regulation.[1]
The FTC’s new focus on dark patterns suggests also that “light patterns” or “bright patterns” also might exist: design elements that enhance consumers’ decisionmaking process by making it easier for users to navigate and follow instructions on a business’s user interface.[2] Some have suggested that businesses should proactively guide consumers’ decisionmaking to serve what is most likely to be in the consumer’s best interest, even if doing so comes with a financial cost to the business.[3] Businesses therefore may wish to consider documenting how they make their design choices so (if faced with a dark patterns challenge) they could prove that their intention is to enhance the consumer experience.
For example, automatic renewal features have long received attention from regulators.[4] One commenter suggests that companies should – after long periods of inactivity – cease automatically renewing subscriptions. Alternatively, a “light pattern” could be for a business to send an email warning consumers that their subscriptions are about to renew and allow them to unsubscribe in a single click.[5] Existing law in many states, however, already extensively regulates automatic renewal marketing, requiring notification and an opportunity to cancel before a subscription is renewed.[6] It’s not clear whether to avoid a dark patterns claim, a business must design something that is more extensive than what is required under applicable state law. Businesses dealing in multiple states, including some that do not or only lightly regulate automatic renewal practices, however, might choose to conform their practices nationwide to the laws of a state with strict consumer protection rules as a potential defense to an FTC dark practices claim on behalf of consumers living in states with lighter regulation. Such behavior is not unprecedented. For example, when California enacted comprehensive consumer privacy legislation, many large businesses announced that they would implement the California rules nationwide, rather than only for their California customers.[7]
Other possible light patterns require some assumptions about what the consumer “really” intended to do. Companies might flag certain transactions that customers might be entering into mistakenly – for example, a company’s online platform could alert customers that a certain item in their cart is not the correct accessory that pairs with another item they are purchasing (instead of automatically adding unnecessary accessories to their cart).[8] A potential downside is annoying customers with unnecessary warnings when they truly wish to engage in purchasing behavior that’s outside the norm. Any system of warning requires extensive knowledge of the business’s customer base and shopping patterns.
It should go without saying that businesses want to offer a positive online experience via systems that are easy to navigate. If customers have an unpleasant experience, they are less likely to return. Anything that is proven to lead to repeat business, then, can arguably be described as a light pattern. Herein lies the problem: repeat business and frequent use can be argued to be proof that something is both a dark pattern and a light pattern. Are customers being manipulated into making their purchase decisions, or do they truly love the product?
Likewise, design elements that reduce friction in the shopping experience – allowing transactions to be completed more quickly and with less effort – can be argued to be both dark patterns and light patterns. Is a one-click shopping experience a dark pattern because it permits purchase decisions to be made without adequate reflection? Or is it a light pattern because it accommodates people’s busy schedules and accommodates their wishes, as expressed through their prior shopping habits?
To create either a dark pattern or a light pattern involves some degree of paternalism on the part of the business. In each case, the business is making a judgment call about what consumers should do in a given circumstance, and often about what consumers should want, even if the consumers think they want something different. Regulators evaluating marketing techniques often bring their own biases and assumptions to their evaluation of the business’s marketing strategy. “I would never pay $__ for a product like that, and certainly wouldn’t do it twice! Someone must have been tricked!” Or more often, “Over the long term, product ____ should be used in moderation only; selling more to the customers who love it the most should be discouraged.” When faced with either point of view, a business should be able to explain how it delivers value, the need that it serves and (for products considered socially undesirable even if legal) how it mitigates against excessive or inappropriate use. Critically, marketing should be truthful and should be consistent with all of these, and this is so both with traditional advertising and in the online environment.
Sometimes, however, a technique challenged as a dark pattern might be essential to the business’s business model. For example, more and more businesses depend upon collection of data, as well as data tracking, sharing and/or selling. The more transparent the disclosure of the business’s actual practices, the easier it will be to defend against the claim that dark patterns are employed. Better still, being able to prove that consumers received value for their data will help to demonstrate compliance.[9] “Value” here might not need to be cash consideration. A business might be able to defend against a dark patterns claim by establishing that a substantial percentage of its customer base prefers or at least doesn’t disapprove of how their data is being used, and that the particular use allows the business to offer other benefits, such as lower prices, greater quantity, higher quality, faster shipping, or to better match its suite of product offerings to its customers’ wishes. Rather than strictly prohibit particular practices, it may be better for regulators to assess both the costs and the benefits obtained by allowing the practice to continue in particular contexts. Ultimately, businesses will need to persuade regulators both of their good intentions and their ability to achieve good outcomes for consumers.
Fundamentally, a business that is following sound design principles and that is transparent both with its pricing and the quality of its products will have robust defenses to a dark patterns claim. Documentation of how it is seeking to improve the customer experience through its design choices also will be useful, as will a record of being responsive to customer complaints and suggestions for improvements. The best defense against a legal claim is, as in so many areas, good customer service.
[1] Stephen Newman et al., How the Federal Trade Commission Is Vigorously Targeting “Dark Patterns” Marketing. Is Vonage’s Nine-Figure Settlement Just the Beginning?, Stroock (Dec. 7, 2022), https://www.stroock.com/news-and-insights/how-the-federal-trade-commission-is-vigorously-targeting-dark-patterns-marketing-is-vonages-nine-figure-settlement-just-the-beginning; Stephen Newman et al., How to Successfully Run the FTC’s Dark Patterns “Obstacle Course” and Keep Your Online Business in Compliance with Consumer Protection Rules, Stroock (Dec. 21, 2022), https://www.stroock.com/news-and-insights/how-to-successfully-run-the-ftcs-dark-patterns-obstacle-course-and-keep-your-online-business-in-compliance-with-consumer-protection-rules; Stephen Newman et al., Potential First Amendment Defenses to a Dark Patterns Claim, Stroock (Jan. 6, 2023), https://www.stroock.com/news-and-insights/potential-first-amendment-defenses-to-a-dark-patterns-claim#1.
[2] Network Advertising Initiative, Bringing Dark Patterns to Light: An FTC Workshop, comments from the Network Advertising Initiative (NAI), filed with the Federal Trade Commission, p. 8 (Mar. 15, 2021), https://thenai.org/wp-content/uploads/2021/07/nai_comments_ftc_dark_patterns_15march2021.pdf
[3] Coleman, Aidan, Light and Dark UX Patterns, Prototypr, (May 26, 2019), https://blog.prototypr.io/light-and-dark-ux-patterns-19ffcaa50e9a.
[4] See FTC, Negative Options (Jan. 2009), https://www.ftc.gov/sites/default/files/documents/reports/negative-options-federal-trade-commission-workshop-analyzing-negative-option-marketing-report-staff/p064202negativeoptionreport.pdf
[5] Boag, Paul, Are You Using Light Patterns?, Boagworld (Feb, 3, 2022), https://boagworld.com/emails/are-you-using-light-patterns/
[6] See Cal. Bus. & Prof. Code § 17602.
[7] See M. Smith, Analysis: Microsoft to Extend CCPA Rights Nationwide; Should You? (Nov. 18, 2019), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-microsoft-to-extend-ccpa-rights-nationwide-should-you
[8] See Coleman, supra.
[9] California is at the forefront of this issue, as a California Privacy Protection Agency regulation outlines how a business might calculate the value of consumer data. See 11 Cal. Code Regs. § 7081. As the FTC has not issued similar guidance, a business might choose to use the methods described in the California regulation to justify that because it has given consumers fair value for their data, it has not engaged in dark practices marketing.
January 17, 2023
Stroock Client Alert
By: Stephen J. Newman, Allen H. Denson, Alina Edep
The Federal Trade Commission (the “FTC”) has recently shed new light on a growing area in consumer protection in the digital age: “dark patterns,” which have been described as website or mobile application design elements that tend to trick or manipulate users into making choices they would not otherwise have made. In our three previous articles on this subject, we have covered the recent Vonage and Epic Games settlements for $100 million and $245 million, respectively; methods businesses can use to stay in compliance with rules on dark patterns; and the potential First Amendment implications of dark patterns regulation.[1]
The FTC’s new focus on dark patterns suggests also that “light patterns” or “bright patterns” also might exist: design elements that enhance consumers’ decisionmaking process by making it easier for users to navigate and follow instructions on a business’s user interface.[2] Some have suggested that businesses should proactively guide consumers’ decisionmaking to serve what is most likely to be in the consumer’s best interest, even if doing so comes with a financial cost to the business.[3] Businesses therefore may wish to consider documenting how they make their design choices so (if faced with a dark patterns challenge) they could prove that their intention is to enhance the consumer experience.
For example, automatic renewal features have long received attention from regulators.[4] One commenter suggests that companies should – after long periods of inactivity – cease automatically renewing subscriptions. Alternatively, a “light pattern” could be for a business to send an email warning consumers that their subscriptions are about to renew and allow them to unsubscribe in a single click.[5] Existing law in many states, however, already extensively regulates automatic renewal marketing, requiring notification and an opportunity to cancel before a subscription is renewed.[6] It’s not clear whether to avoid a dark patterns claim, a business must design something that is more extensive than what is required under applicable state law. Businesses dealing in multiple states, including some that do not or only lightly regulate automatic renewal practices, however, might choose to conform their practices nationwide to the laws of a state with strict consumer protection rules as a potential defense to an FTC dark practices claim on behalf of consumers living in states with lighter regulation. Such behavior is not unprecedented. For example, when California enacted comprehensive consumer privacy legislation, many large businesses announced that they would implement the California rules nationwide, rather than only for their California customers.[7]
Other possible light patterns require some assumptions about what the consumer “really” intended to do. Companies might flag certain transactions that customers might be entering into mistakenly – for example, a company’s online platform could alert customers that a certain item in their cart is not the correct accessory that pairs with another item they are purchasing (instead of automatically adding unnecessary accessories to their cart).[8] A potential downside is annoying customers with unnecessary warnings when they truly wish to engage in purchasing behavior that’s outside the norm. Any system of warning requires extensive knowledge of the business’s customer base and shopping patterns.
It should go without saying that businesses want to offer a positive online experience via systems that are easy to navigate. If customers have an unpleasant experience, they are less likely to return. Anything that is proven to lead to repeat business, then, can arguably be described as a light pattern. Herein lies the problem: repeat business and frequent use can be argued to be proof that something is both a dark pattern and a light pattern. Are customers being manipulated into making their purchase decisions, or do they truly love the product?
Likewise, design elements that reduce friction in the shopping experience – allowing transactions to be completed more quickly and with less effort – can be argued to be both dark patterns and light patterns. Is a one-click shopping experience a dark pattern because it permits purchase decisions to be made without adequate reflection? Or is it a light pattern because it accommodates people’s busy schedules and accommodates their wishes, as expressed through their prior shopping habits?
To create either a dark pattern or a light pattern involves some degree of paternalism on the part of the business. In each case, the business is making a judgment call about what consumers should do in a given circumstance, and often about what consumers should want, even if the consumers think they want something different. Regulators evaluating marketing techniques often bring their own biases and assumptions to their evaluation of the business’s marketing strategy. “I would never pay $__ for a product like that, and certainly wouldn’t do it twice! Someone must have been tricked!” Or more often, “Over the long term, product ____ should be used in moderation only; selling more to the customers who love it the most should be discouraged.” When faced with either point of view, a business should be able to explain how it delivers value, the need that it serves and (for products considered socially undesirable even if legal) how it mitigates against excessive or inappropriate use. Critically, marketing should be truthful and should be consistent with all of these, and this is so both with traditional advertising and in the online environment.
Sometimes, however, a technique challenged as a dark pattern might be essential to the business’s business model. For example, more and more businesses depend upon collection of data, as well as data tracking, sharing and/or selling. The more transparent the disclosure of the business’s actual practices, the easier it will be to defend against the claim that dark patterns are employed. Better still, being able to prove that consumers received value for their data will help to demonstrate compliance.[9] “Value” here might not need to be cash consideration. A business might be able to defend against a dark patterns claim by establishing that a substantial percentage of its customer base prefers or at least doesn’t disapprove of how their data is being used, and that the particular use allows the business to offer other benefits, such as lower prices, greater quantity, higher quality, faster shipping, or to better match its suite of product offerings to its customers’ wishes. Rather than strictly prohibit particular practices, it may be better for regulators to assess both the costs and the benefits obtained by allowing the practice to continue in particular contexts. Ultimately, businesses will need to persuade regulators both of their good intentions and their ability to achieve good outcomes for consumers.
Fundamentally, a business that is following sound design principles and that is transparent both with its pricing and the quality of its products will have robust defenses to a dark patterns claim. Documentation of how it is seeking to improve the customer experience through its design choices also will be useful, as will a record of being responsive to customer complaints and suggestions for improvements. The best defense against a legal claim is, as in so many areas, good customer service.
[1] Stephen Newman et al., How the Federal Trade Commission Is Vigorously Targeting “Dark Patterns” Marketing. Is Vonage’s Nine-Figure Settlement Just the Beginning?, Stroock (Dec. 7, 2022), https://www.stroock.com/news-and-insights/how-the-federal-trade-commission-is-vigorously-targeting-dark-patterns-marketing-is-vonages-nine-figure-settlement-just-the-beginning; Stephen Newman et al., How to Successfully Run the FTC’s Dark Patterns “Obstacle Course” and Keep Your Online Business in Compliance with Consumer Protection Rules, Stroock (Dec. 21, 2022), https://www.stroock.com/news-and-insights/how-to-successfully-run-the-ftcs-dark-patterns-obstacle-course-and-keep-your-online-business-in-compliance-with-consumer-protection-rules; Stephen Newman et al., Potential First Amendment Defenses to a Dark Patterns Claim, Stroock (Jan. 6, 2023), https://www.stroock.com/news-and-insights/potential-first-amendment-defenses-to-a-dark-patterns-claim#1.
[2] Network Advertising Initiative, Bringing Dark Patterns to Light: An FTC Workshop, comments from the Network Advertising Initiative (NAI), filed with the Federal Trade Commission, p. 8 (Mar. 15, 2021), https://thenai.org/wp-content/uploads/2021/07/nai_comments_ftc_dark_patterns_15march2021.pdf
[3] Coleman, Aidan, Light and Dark UX Patterns, Prototypr, (May 26, 2019), https://blog.prototypr.io/light-and-dark-ux-patterns-19ffcaa50e9a.
[4] See FTC, Negative Options (Jan. 2009), https://www.ftc.gov/sites/default/files/documents/reports/negative-options-federal-trade-commission-workshop-analyzing-negative-option-marketing-report-staff/p064202negativeoptionreport.pdf
[5] Boag, Paul, Are You Using Light Patterns?, Boagworld (Feb, 3, 2022), https://boagworld.com/emails/are-you-using-light-patterns/
[6] See Cal. Bus. & Prof. Code § 17602.
[7] See M. Smith, Analysis: Microsoft to Extend CCPA Rights Nationwide; Should You? (Nov. 18, 2019), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-microsoft-to-extend-ccpa-rights-nationwide-should-you
[8] See Coleman, supra.
[9] California is at the forefront of this issue, as a California Privacy Protection Agency regulation outlines how a business might calculate the value of consumer data. See 11 Cal. Code Regs. § 7081. As the FTC has not issued similar guidance, a business might choose to use the methods described in the California regulation to justify that because it has given consumers fair value for their data, it has not engaged in dark practices marketing.
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