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United States Privacy Digest | Notes from the IAPP, Nov. 12, 2021 Related reading: Notes from the IAPP, Nov. 5, 2021

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Hello, privacy pros!

The cold weather is quickly approaching here in Maine and looking through my closet this week, I realized I could use some fresh, and warmer, items. I started perusing websites online, just wanting to browse before making any purchases. On more than one website, a pop-up immediately appeared offering me a discount off my purchase if I provided my name and email address to sign up for deals and news from the store. I chose not to provide my information but was pleased to see an option to decline was easily viewable and accessible to users.

This is not always the case, as some websites or mobile applications turn to dark patterns to manipulate or influence consumers towards a decision that could be profitable for the company but not what the buyer intended. One of the retailers I came across could have instead provided an option like “No thanks, I prefer to pay full price,” shaming some consumers into providing their data.

Dark patterns are not new, but they are catching the attention of lawmakers, consumer protection agencies and others now more than ever.

In late October, the U.S. Federal Trade Commission issued an enforcement policy statement warning companies against deploying dark patterns, the agency saying it is “ramping up” enforcement in response to rising complaints. The FTC said businesses will be subject to law enforcement action, including civil penalties, if they do not "clearly and conspicuously" disclose terms of their product or service, obtain customers’ "express informed consent" before charging for a product or service, and "provide easy and simple cancellation" options.

“The number of ongoing cases and high volume of complaints demonstrate there is prevalent, unabated consumer harm in the marketplace,” the FTC’s statement said.

Also, the U.S. Securities and Exchange Commission recently closed a public consultation on digital engagement practices by broker-dealers and investment advisors, including a look into dark patterns.

I was pleased to report on the growing attention surrounding dark patterns late this past summer, including legislative proposals containing provisions against manipulative practices, ways companies are working to reach consumers with more transparency and accessibility, and efforts to raise awareness for consumers — like the Dark Patterns Tip Line where individuals can report instances they’ve experienced.

NBC News reported last week that all this focus could be pointing to impending regulation and change.

“The more we can draw attention to the prevalence of dark patterns in everyday life and the harms that they cause, we could actually begin to see a change in both the experiences people have when they sign up for something and then a change that the large providers have to make,” said Stanford University’s Digital Civil Society Lab Director Lucy Bernholz.

In this ever-increasingly digital world, this is an issue that affects all of us online and finding ways to combat manipulative practices is important, now and for the future. It will be interesting to see how regulations, both current and yet to come, will target the use of dark patterns and how enforcement actions will unfold. We’ll be sure to keep you in the know.

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