Dark Patterns: A New Legal Standard or Just a Catchy Name? (Part Two)In Part One of this discussion, we provided background on the concept of dark patterns and analyzed some recent examples from State AG enforcement. We concluded that, in alleging dark patterns, State AGs are building primarily on existing precedent governing deception and unfairness but also are trying to push the envelope. Whereas earlier precedent mostly

Dark Patterns- A New Legal Standard or Just a Catchy Name? (Part One)State and federal regulators have definitely put a new emphasis on combatting so-called “dark patterns” – a term attributed in 2010 to user-experience expert Harry Brignull, who runs the website darkpatterns.org. Consider some of the actions of 2021: In April, the FTC hosted a workshop dedicated to dark patterns. In July, Colorado passed the Colorado Privacy Act that specifically defines and prohibits the use of dark patterns.  In October, the FTC issued a policy statement warning against the use of dark patterns in subscription services.  And just last week, a bipartisan group of four states sued Google alleging in part violations of state law for Google’s use of dark patterns in obtaining consumers’ consent to collect geolocation information.  But other than a catchy name, is there really anything new about the types of conduct that state and federal officials are calling illegal?  This two-part blogpost will take a closer look at that question.

What are “Dark Patterns?”

There are a number of definitions of “dark patterns” that are bandied about.  Darkpatterns.org calls them, “tricks used in websites and apps that make you do things that you didn’t mean to, like buying or signing up for something.”  In the Colorado Privacy Act, dark patterns are defined as, “a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice.”  And in the recent Google lawsuits, each State defined dark patterns as, “deceptive design choices that take advantage of behavioral tendencies to manipulate users to make choices for the designer’s benefit and to the user’s detriment.”
Continue Reading Dark Patterns: A New Legal Standard or Just a Catchy Name? (Part One)