Have you ever signed up for a free trial of an online service, decided it is not for you, but still ended up paying for it months – or even years – later? Or tried cancelling a subscription, and found yourself giving up during the painstaking process? If so, there is a good chance you have encountered “dark patterns” – or clever tricks built into apps and websites to encourage you to do things you may not necessarily want to do. They make it easy to “accept all” tracking cookies, for example, and swiftly agree to terms and conditions before making an online purchase. They also make it easy to sign up to a service – but time consuming and frustrating to leave. And recent research shows how most of the time they benefit companies at the expense of consumers.
This imbalance has not gone unnoticed by regulators. The U.S. Federal Trade Commission (“FTC”) – which aims to protect consumers from unfair business practices – believes an increasing number of companies are “using digital dark patterns to trick people into buying products and giving away their personal information.” For instance, the regulator is currently taking action against Amazon.com, Inc. for its “years-long effort to enroll consumers into its Prime program without their consent while knowingly making it difficult for consumers to cancel their subscriptions to Prime.” The FTC alleged in its June 21 complaint that Amazon “has knowingly duped millions of consumers into unknowingly enrolling in Amazon Prime,” and specifically has “used manipulative, coercive, or deceptive user-interface designs known as ‘dark patterns’ to trick consumers into enrolling in automatically-renewing Prime subscriptions.”
In response, Amazon said in a statement this summer that the lawsuit shows the FTC’s “misunderstanding of retail.” The Jeff Bezos-founded online retail behemoth also said, “We make it clear and simple for customers to both sign up for or cancel their Prime membership.”
Outside of the U.S.
The FTC is not alone in its concerns about dark patterns. The European Union recently passed legislation which can be used to fine companies that use dark patterns, and the United Kingdom’s Financial Conduct Authority has launched rules designed to protect consumers from dark patterns in financial services. Meanwhile, the UK’s Competition and Markets Authority (“CMA”) recently announced its first investigation into dark patterns with an open letter warning business against what it calls “harmful online choice architectures.”
Coined by the authors of the extremely popular and influential book Nudge, “choice architecture” refers to the “the design of different ways in which choices can be presented to decision makers.” For instance, a “choice architect” could help a consumer by reducing the amount of irrelevant information presented to them, allowing space for a considered, focused decision to be made – but most dark patterns work by manipulating choice architecture. Rather than helping consumers, the architecture is designed to hinder choice. So, instead of removing irrelevant material, it may bombard a user with excessive information, extra steps, and distractions to stop them cancelling a subscription.
As the CMA noted in a 2022 discussion paper, entitled, “Online Choice Architecture: How digital design can harm competition and consumers,” in today’s online world “businesses can design and control every aspect of their interactions with us to an extent that is unprecedented in traditional brick and mortar businesses.” Research suggests the CMA is right, and that online companies have an almost unlimited ability to refine their interactions with consumers. Online experiences are increasingly personalized, and tech-savvy firms have more ways than ever to engage with – and manipulate – us.
A framework for ID’ing dark patterns
While regulators tend to focus on dark patterns as a way of getting consumers to part with their money or data, others have expressed concerns about potential psychological harms and a loss of freedom by users of online services. With these risks in mind, we have used insights from behavioral science to identify some of the processes that make dark patterns work and created a simple framework to describe the most pervasive strategies …
– “Detours” refer to tools used to delay and distract us, such as requiring an excessive number of actions to cancel a subscription.
– “Roundabouts” try to bore or frustrate us to the point of giving up, like clicking on link after link, taking users around in circles; and
– “Shortcuts” offer an immediately easy (but potentially costly) choice, like the “accept all” buttons on cookie prompts or requests to accept terms and conditions. In one study, a particularly long terms and conditions document led 98 percent of participants to agree to hand over their firstborn child as payment.
Our framework of terms is designed for simplicity – to empower consumers to spot dark patterns themselves, and to help regulators intervene. The freedom to create and delete accounts for a service is a fundamental step in navigating the online world, and it should not be drastically more straightforward to set up a social media account than it is to delete it. There is no good reason for detours, roundabouts, and shortcuts to get in the way. We believe it should be as easy – if not easier – to delete an account as it is to create one. Most of the services we examined failed this standard.
Without consumer push back and regulatory muscle, the online world is likely to become even harder for the average consumer to navigate. On the plus side, regulators seem to be stepping up, and new tools for protecting consumers from dark patterns are emerging. There may yet be light at the end of this manipulative tunnel.
Richard Whittle is a University Fellow in AI and Human Decision Making at the University of Salford.
Stuart Mills is an Assistant Professor of Economics at the University of Leeds. (This article was initially published by The Conversation.)
Share
