United States: Stop With The "Legal-Verbal Circum-Stratagizing"

My office in Washington, D.C. sits kitty-corner to the Planet Word Museum, a new museum dedicated to "renewing and inspiring a love of words and language." While the nearby Planet Word has attracted busloads of schoolchildren since it opened in 2000, providing visitors with an immersive learning experience that is meant to promote "understanding of language arts and science," I have been observing how words are being used by regulators – primarily the Federal Trade Commission – to obfuscate the law of deception.

"Dark patterns" has emerged as a phrase that can mean just about anything the FTC wants it mean. Imported from European regulators, the term "dark patterns" has been giddily embraced by the FTC to describe a vast range of marketing behaviors that essentially boil down to persuasion. Marketers, trained to convince consumers to direct their dollars one way rather than another, have been transformed through the use of language, skilled in the art of taking advantage of "consumers' cognitive biases to steer their conduct or delay access to information needed to make fully informed decisions."

In one articulation by the FTC in its September 2022 report entitled "Bringing Dark Patterns to Light," the Commission states that "dark patterns" describe "practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm." Traditionally, marketing is precisely that. In the U.S., marketers are permitted to express their biased views about their own products and try to convince would-be consumers that they should feel the same way, up to the line when such actions and words become deceptive or unfair. It is not news that false, misleading, deceptive, or unfair advertising and marketing practices are unlawful under federal and state law. So why invent an entire new category of actions – "dark patterns" – to describe how marketers play with our all-too-vulnerable adult brains?

The FTC has reasons to venture off into a new realm of "dark patterns" rather than use the tools given it by Congress to address these ills. According to the FTC, these "dark patterns" show up in a variety of contexts "including ecommerce, cookie consent banners, children's apps, subscription sales, and more." However, the FTC and state regulators have been addressing deceptive acts and practices in areas such as ecommerce, children's advertising, and recurring charge consent for decades without the need for a new descriptor. What's changed?

The FTC suggests that the use of social media and the role of influencers might have a compounding effect on the difficulty a consumer might have in recognizing when they're being manipulated. It is telling that in the FTC's 2022 report on "dark patterns" the Commission often references the marketing activities targeting children such as the "dark" practice of putting sugary cereals at eye level for a child in store aisles. Whenever the government bases its regulation of adults on principles related to the protection of children, you know we're heading in a dangerous direction.

The power of this approach from the perspective of a progressive FTC is that there are no statutes or cases that use the phrase "dark pattern" in any way that would curtail the Commission's ability to wield it. That's not the case with words like "deception" and "unfairness," which are central to the FTC's consumer protection mandate under § 5 of the FTC Act. "Dark patterns," has no history, no roots, no grounding in FTC jurisprudence. It is literally whatever the FTC says it is.

And what does the FTC say it is? Basically, it's what effective marketers do: they use their knowledge of human behavior to help them sell products and services.

In one case, settled in 2022, the FTC alleged in its complaint that the company knew that its words conveyed a sense of certainty to consumers and used that knowledge to "deliberately to influence consumers' behavior." The FTC alleged that the marketer used consumer testing of different versions of the advertising to see which one was more effective. (What nerve!) Whether or not advertising is or may be deceptive – i.e., whether there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances to the consumer's detriment – the Commission now uses "dark patterns" nomenclature to describe a marketer's activity in nefarious undertones before even beginning its analysis. To the current FTC, traditional marketing to adults is suspicious from the get-go.

In June, 2023, the FTC announced a settlement with Publisher Clearing House regarding charges that PCH had engaged in "dark patterns." PCH allegedly imposed the same sort of meandering consumer journey PCH customers have been navigating for decades. Moreover, PCH over the last 30 years has conformed its marketing practices to standards set by state regulators pursuant to state unfair and deceptive acts and practices statutes through massive settlement agreements. Armed with its new favorite phrase, the FTC can reexamine the sweepstakes giant's marketing strategy. Our reborn "national nanny" protects adults against "tricky wording."

Like the word "like" among those younger than 30, the phrase "dark patterns" has become ubiquitous in the parlance of consumer protection regulators, advocates, and increasingly class action lawyers. Because "dark patterns" isn't necessarily tethered to any legal definition and can be whatever the FTC says it is, we are seeing the emergence of European-style, quasi-legal marketing ethics. Take for example a case at the National Advertising Division (NAD) in late 2022 involving Blue Apron's representation that canceling a subscription was "easy." In that case, the NAD on its own – the NAD has a self-proclaimed ability to engage in "monitoring" cases – challenged the at-home meal preparation service's subscription process. Citing the FTC's 2022 report on "dark patterns," the NAD observed that "the FTC's Dark Patterns Report suggests that consumers should be able to cancel a subscription-based service through the same medium as signup. As consumers can sign up for Blue Apron online, "easy" cancellation methods should similarly be available online." (Emphasis added.) Thus, the NAD forced (on pain of referral to the FTC) Blue Apron to defend its subscription process, and the agency held it to a standard that was "suggested" by the FTC's use of the phrase "dark patterns." Without assessing whether the cancellation process was deceptive or in any way misleading, the NAD merely looked to whether the cancellation method was as easily accessed as the sign-up method. The NAD did not appear curious as to whether anyone was or was likely to be misled. All that mattered was whether the advertiser was engaged in a "dark pattern." (By the way, the NAD ultimately decided that there was nothing wrong with the advertiser's subscription process.)

Of course, consumer advocacy groups are riding this wave in a big way. For example, in 2021, Consumer's Union introduced the Dark Patterns Tip Line, "a hub for consumers to anonymously submit examples of dark patterns they spot on the web. The Tip Line is being launched in conjunction with a coalition of researchers and advocacy organizations."

And, class action lawyers are finding "dark patterns" a convenient new way to throw a colander of claims against the wall to see what sticks. One has to wonder at the astonishing use of new phrases found in some of these complaints to describe certain subscription methods: "Word-tricking" and "confirmshaming" are my favorites.

State legislatures are learning the lingo. New U.S. state privacy laws now are incorporating this wording, too. For example, the Colorado Privacy Act (CPA) defines dark patterns as any user interface "designed or manipulated with the substantial effect of subverting user autonomy or choice." And, if your head wasn't already spinning, the Connecticut Data Privacy Act (CTDPA) defines dark patterns as any practice the Federal Trade Commission refers to as a dark pattern!

"Dark patterns" is a characterization of activities that another person – usually the government – finds objectionable. It can also be viewed as a clever, cynical, Orwellian strategy for the government to use words that sound nefarious and mean nothing - and thereby mean anything – to accuse another of acting unlawfully rather than having to explain let alone prove why the targeted action is deceptive or unfair.

This article is presented for informational purposes only and is not intended to constitute legal advice.