What legal standards define and prohibit dark patterns on shopping apps?

In the rapidly growing world of e-commerce and mobile shopping, shopping apps play a significant role in shaping consumer experiences. However, many apps use dark patterns manipulative design choices that trick or pressure users into making decisions they might not otherwise make. These deceptive tactics can include things like auto-checking boxes for additional purchases, making it hard to unsubscribe, or hiding important information. While these practices may benefit businesses in the short term, they harm consumers and are increasingly coming under scrutiny from regulators. The question arises: what legal standards define and prohibit dark patterns in shopping apps, and how can these be enforced to protect consumers?

1. What Are Dark Patterns?

Dark patterns are user interface (UI) and user experience (UX) design choices that manipulate or coerce users into making decisions that benefit businesses at the expense of consumers. Examples of dark patterns in shopping apps include:

• Hidden Costs: Making it difficult for users to see the full price of a product until they reach the final checkout page.
• Forced Continuity: Tricking users into subscribing to a service with automatic renewals or trial periods that are hard to cancel.
• Trick Questions: Phrasing options in a confusing way to trick users into agreeing to something they didn't intend to.
• Bait and Switch: Offering a product or deal and then changing the offer or the conditions after the user shows interest.
• Hidden Opt-Outs: Making it difficult for users to opt-out of subscriptions, marketing emails, or extra charges.
• Fake Countdown Timers: Displaying fake urgency (e.g., only 2 left in stock or sale ends in 5 minutes) to pressure users into buying quickly.

These tactics aim to manipulate consumer behavior without their full, informed consent.

2. Legal Standards Defining Dark Patterns

There are several legal standards that aim to combat dark patterns and ensure consumer rights are protected. These standards focus on deceptive practices, transparency, and consumer protection in digital environments.

• The Federal Trade Commission (FTC): In the U.S., the Federal Trade Commission enforces laws against unfair or deceptive acts and practices under the FTC Act. The FTC has the authority to investigate and act against businesses using deceptive designs or dark patterns that mislead consumers. The FTC’s focus is on ensuring that businesses do not manipulate consumers into making choices they wouldn’t otherwise make, and that all terms are clear and understandable.
• The European Union’s General Data Protection Regulation (GDPR): While primarily a data privacy regulation, the GDPR also addresses issues related to consent and consumer rights. Under the GDPR, obtaining informed consent is key. Dark patterns that coerce users into agreeing to terms or sharing personal data violate the GDPR, as it requires users to make decisions freely and without manipulation.
• The Consumer Protection from Unfair Trading Regulations (UK): In the UK, the Consumer Protection from Unfair Trading Regulations prohibits misleading commercial practices. This includes actions that distort or manipulate consumer choices, which dark patterns often involve. Businesses are required to ensure that all marketing and sales tactics are clear and transparent to consumers.
• California Consumer Privacy Act (CCPA): The CCPA provides consumers in California with more control over their personal information, including the right to opt-out of the sale of their data. If a shopping app uses dark patterns to prevent users from exercising their rights to opt-out, this could be a violation of the CCPA. The law requires companies to be transparent about data collection and uses, and to allow consumers to make informed decisions.
• The Digital Services Act (DSA) in the EU: The Digital Services Act provides guidelines for handling online platforms, including e-commerce apps, and aims to promote user safety and transparency. Under the DSA, platforms are required to ensure that their interfaces are clear and do not mislead users into making unfair choices. It prohibits any deceptive design practices that lead to consumer harm.

3. Enforcement of Laws Against Dark Patterns

While the legal standards are in place, enforcement remains a challenge. Several factors contribute to this:

• Awareness and Detection: Identifying dark patterns in digital interfaces is difficult, especially since they often appear as seemingly normal user experience design elements. Regulatory bodies must be proactive in investigating apps and websites that may be using dark patterns, which requires a deep understanding of digital design and consumer behavior.
• Jurisdictional Issues: E-commerce apps often operate across multiple regions and countries, which can complicate enforcement. Laws like the GDPR or CCPA may only apply in certain areas, while others may not have similar protections. This makes it harder to regulate global platforms.
• Industry Cooperation: The tech industry has generally not been keen on regulating itself, which makes enforcing these standards more difficult. However, growing public concern and pressure from consumer protection groups are pushing companies to take more responsibility.

4. What Can Be Done to Improve Enforcement?

There are several steps that regulatory bodies and app developers can take to combat dark patterns and ensure a fair and transparent shopping experience:

• Stronger Regulations: Regulatory bodies could create more detailed and specific rules for digital shopping platforms, clearly defining what constitutes dark patterns. This includes more specific guidelines on transparency in pricing, subscriptions, and data collection practices.
• Frequent Audits: Governments and independent agencies should conduct more frequent audits of e-commerce platforms to identify and eliminate dark patterns. Regular checks can help detect manipulative practices before they cause significant harm to consumers.
• Educating Consumers: Consumer awareness campaigns can educate people about dark patterns, helping them recognize when they’re being manipulated. Educated consumers are more likely to report deceptive practices and avoid platforms that use these tactics.
• Increased Penalties: Governments could introduce stricter penalties for companies that engage in deceptive or manipulative practices, including fines or restrictions on business operations. In the EU, for example, companies that violate GDPR can face substantial fines, which acts as a strong deterrent.
• Promote Ethical Design: Tech companies and developers can commit to ethical UX/UI practices by designing apps and websites that prioritize consumer trust. This means focusing on transparency, clear pricing, easy cancellation processes, and honest marketing.

5. Examples of Legal Actions Against Dark Patterns

Several companies have already been investigated or penalized for using dark patterns:

• Facebook (Meta): Facebook faced scrutiny over its dark patterns related to data privacy settings. The platform used confusing language and designs that tricked users into allowing the platform to collect more personal data.
• Amazon: Amazon has faced criticism for using dark patterns in the form of one-click purchasing and subscription auto-renewals. The platform’s aggressive upselling techniques and complex cancellation processes have raised concerns among consumer protection groups.
• Nike: Nike faced legal challenges for using forced continuity dark patterns that made it difficult for users to cancel subscriptions to its membership program. The company was accused of misleading consumers into unknowingly renewing their memberships.

Example

Scenario:

A user is shopping on an app that offers a free trial for a premium membership. The app has a dark pattern where the user is automatically enrolled in a paid subscription after the free trial ends. The option to cancel the subscription is buried deep within the settings, and the user is charged without their explicit consent.

Steps the Consumer Should Take:

• Report the Issue: The consumer should file a complaint with the app's customer service and request a refund for the charges.
• File a Complaint with Regulatory Authorities: If the issue is not resolved, the consumer can report the app to the relevant consumer protection agency, such as the FTC or CCPA enforcers.
• Seek Legal Advice: If necessary, the consumer could consult a lawyer to determine if the app violated consumer protection laws and if they are entitled to further compensation.