Dark design patterns — the day of reckoning is coming
Legal action against large firms that employ dark design is a sign of positive changes to come
The Federal Trade Commission (FTC) recently filed a complaint against Amazon in which they stated that the cancellation process for a Prime subscription was convoluted and that the tech giant had been, for years, enrolling unsuspecting consumers into subscribing for the service. It further stated that Amazon’s use of dark design patterns is to be blamed for this.
It has emerged that Amazon was aware of these issues, even going ahead to call their process “Iliad”, a homage to Homer’s poem about the Trojan war, yet they chose to reject changes that would make cancellation an easier process. Moreover, the FTC pointed out that not being a Prime member made shopping on Amazon harder. For one, there aren’t many options available for purchases to users who aren’t Prime subscribers, or such options are hard to locate. Apart from being convoluted, there are multiple places in the cancellation process where Prime asks consumers to subscribe. All this has gone to show that, for Amazon, in the FTC’s words, “the primary purpose of its Prime cancellation process was not to enable subscribers to cancel, but to stop them”.
For the uninitiated, dark design patterns are the use of design components to manipulate a user’s behavior or actions in such a way that it doesn’t benefit them, or rather works against them. The opposite too does exist, where design tricks can be used to benefit the user or for positive behavioral manipulation, and these are called light UX patterns.
Dark design patterns have been around for a long time. The term itself was coined by Dr. Harry Brignull in the early 2010s. Harry is the founder of the site Deceptive Patterns and serves as an expert witness in lawsuits involving the use of dark patterns. The explanation for the term, as described on the site is:
Deceptive patterns (also known as “dark patterns”) are tricks used in websites and apps that make you do things that you didn’t mean to, like buying or signing up for something.
There are about 16 different types of these patterns, and I won’t try doing a deep dive of them in this article, as there are other well-written ones that explain them effectively. Instead I’m going to focus on recent developments in this landscape that have forced companies to own up to their manipulative practices.
Why are dark design patterns bad?
The most obvious reason would be that dark design patterns take away a user’s agency (and in some cases, money) and deceives users into taking actions against their best interests. Due to its nature, dark patterns have been designed to be hard to spot. Hence, consumers unsuspectingly give into the manipulation these designs have been created for.
But what might seem more interesting is that research has shown, that even if users were able to spot them, and knew they were being persuaded, they were still susceptible to the influence of these design tactics, which furthers the negative impact dark design has on people.
There is however another issue with dark design patterns, and this is something that has come up with the whole FTC-Amazon fiasco. When big tech firms like Amazon make use of such design patterns, there is a potential for antitrust implications as they hoard a larger share of the market by making use of these deceptive tactics.
What has been done to combat the effects of dark patterns?
In the United States, the existence of the FTC is a giant step in the direction of consumer protection. It’s an independent agency that has, over the years, taken on various companies, by exposing their deceptive design practices.
In the past year, they brought charges against Epic Games for tricking users into making unwanted purchases through the use of dark design, which led to a settlement package of $245 million which was to be used as refunds to customers. The agency has been investigating Amazon’s Prime subscription services since March 2021. In late May, the FTC settled with Amazon for more than $30 million on cases related to privacy lapses in their Alexa and Ring products.
In addition to this, there are laws in place that can help deal with dark design. The notable one that has appeared in the discourse around Amazon has been the FTC Act, which prohibits deceptive acts or practices omitting or misrepresenting information. Another key act is the Restore Online Shoppers’ Confidence Act (ROSCA), which prohibits post-transaction third party sellers from charging a financial account, unless it was disclosed clearly and was consented to by the consumer. This helps prohibit unwanted subscriptions and prevents customers from being enrolled into them unknowingly.
The FTC has also proposed an amendment to the Negative Option Rule. The amendment calls for same mode cancellation processes to be in effect. So, for instance, if you signed up for something online, you should be able to cancel it online as well, rather than having to mail in papers to cancel it. In addition to this, the amendment would require companies to ask consumers if they would be open to retention offers during the cancellation process before showing them deals related to it, which would target cancellation processes used by companies like Amazon. The rule hasn’t been finalized yet as the agency wants the public to weigh in on the proposal.
Apart from these regulatory actions, designers in the community have long been trying to make a case for ethical design, that places the user’s best interests and well-being at the heart of it. It’s true that we as designers have a major responsibility and contribution to the effects of dark design, and changing our approach, by adopting the practices of ethical design, could help us overcome it.
Though dark patterns have been in the news lately, they have existed around for quite some time. I remember being intrigued by them when I watched Netflix’s highly acclaimed documentary, The Social Dilemma, which released back in 2020 and focuses on the issue. It was perhaps the first time I discovered the negative effects that design could have. It’s good to see that a couple of years down the line we are seeing action being taken against these patterns and a promise of better change to come.
