After discussing what are “dark patterns” and the most common forms they can take, we consider whether and how “dark patterns” used to influence consumers’ online behavior differ from traditional scams directed at consumers involving the use of deception.  We then discuss the federal and state statutes and common law claims currently being used to challenge the use of “dark patterns” as well as current legislative action to more directly target “dark patterns” and the challenges lawmakers face in crafting new legislation.  We also assess the effectiveness of using private lawsuits rather than government enforcement to police the use of “dark patterns.”  We conclude with practical steps companies should consider taking to avoid the risk of enforcement or private actions arising from claims that “dark patterns” are present in their user interface designs.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.  To listen to the episode, click here.

Professor Dickinson is the author of an article titled “Privately Policing Dark Patterns,” to be published in the Georgia Law Review.  The article is available here.

On August 16, 2023, from 12:00 p.m. to 1:00 p.m. ET, Ballard Spahr attorneys will hold a webinar, “Shining a Bright Light on Digital Dark Patterns.”  For more information and to register, click here.

We recently discussed “dark patterns,” including what regulators consider to be “dark patterns” and why they are a focus of regulatory concern, in an episode of our Consumer Finance Monitor podcast for which our special guest was Andrew Nigrinis, PhD, the Managing Principal of Edgeworth Economics and a former CFPB enforcement economist.  “Dark patterns “were also discussed in an episode of our Consumer Finance Monitor podcast for which our special guest was Malini Mithal, Associate Director, FTC Division Of Financial Practices.  To listen to those episodes, click here and here