The U.S. Federal Trade Commission (FTC), along with two other international consumer protection networks, released the results of a study on Thursday into the use of “dark patterns,” or subtle design techniques that can put users' privacy at risk or trick them into purchasing products or services or taking actions they would not otherwise take. An analysis of 642 websites and apps that offer subscription services found that the vast majority (about 76%) used at least one dark pattern, and about 67% used multiple dark patterns.
Dark patterns refer to a variety of design techniques that can subtly encourage users to take certain actions or put their privacy at risk. They are particularly popular in subscription-based websites and apps, and have been a focus of the FTC for the past few years. For example, the FTC sued the dating app giant Match for using dark patterns to make it difficult to cancel subscriptions and other deceptive practices.
The release of the new report could signal that the FTC plans to pay more attention to these types of consumer scams. The report also comes at a time when the Department of Justice is suing Apple over its monopoly on the App Store, a marketplace that generates billions of dollars in charges and sales for digital products and services, including those offered through subscription apps.
A new report released Thursday details different types of dark patterns, including stealthy, disruptive, persistent, coercive behaviors and social proof.
Sneaking was one of the most common dark patterns found in the study, and refers to failing to turn off auto-renewal of a subscription during the sign-up and purchase process. 81% of surveyed sites and apps used this technique to ensure automatic subscription renewal. In 70% of cases, the subscription provider did not provide information on how to cancel the subscription, and 67% did not provide a date by which consumers should cancel to avoid being charged again.
Interference is another common thing we see in subscription apps. Interference makes it difficult or tedious to take certain actions, like canceling a subscription or skipping a free trial sign-up. The “X” to close the offer is greyed out and hidden from view.
Nailing is when a company repeatedly asks a consumer to take some action that they want them to take. (Though not a subscription app, an example of nagging would be TikTok repeatedly prompting users to upload their contacts to the app, even after the user declines.)
Coercive behaviour means requiring consumers to take some steps to access a particular feature, such as entering payment details to take part in a free trial. This was mandatory for 66.4% of websites and apps surveyed.
Social proof, on the other hand, leverages the power of the crowd to encourage consumers to buy by showing them metrics related to some activity. It's especially popular in the e-commerce industry, where businesses show how many users are viewing the same product or adding it to their cart. For a subscription app, social proof can be used to encourage users to sign up for a subscription by showing how many other users are doing the same thing.
The study found that 21.5% of websites and apps surveyed used notifications or other forms of social proof to persuade consumers to sign up for a subscription.
Sites may also try to instill a sense of urgency to get consumers to buy. This is common on Amazon and other e-commerce sites, letting people know they're low on stock and urging them to buy soon, but it might not be used as much to sell subscriptions.
Interface interference is a broad category that refers to the ways in which apps and websites are designed to trick consumers into making decisions that favor the company. This can include pre-selecting items like longer or more expensive subscriptions (done by 22.5% of those surveyed) or using “false hierarchies” that make company-more favorable options more visually prominent. The latter was used by 38.3% of companies surveyed.
Interface interference can also include what the study calls “confirmation shaming,” which means using language to evoke emotions and manipulate consumers' decision-making process, such as “Sign up, you don't want to miss out!”
The investigation was conducted from January 29 to February 2 as part of the International Consumer Protection Enforcement Network's (ICPEN) annual investigation and covered 642 websites and apps that offer subscriptions. The FTC will chair ICPEN from 2024 to 2025, the commission noted. Using descriptions of dark patterns created by the Organization for Economic Cooperation and Development (OECD), officials from 27 authorities in 26 countries participated in the investigation. However, the scope of their work was not to determine whether there was illegal activity in the affected countries, which is a decision for national governments.
The FTC participated in the ICPEN investigation, which was also conducted in coordination with the Global Privacy Enforcement Network, a network of more than 80 privacy enforcement agencies.
This is not the first time the FTC has investigated the use of dark patterns. In 2022, it also produced a report detailing various dark patterns, but it wasn't limited to subscription websites and apps. Instead, its previous reports looked at dark patterns across industries, including e-commerce and children's apps, as well as different types of dark patterns used in things like cookie consent banners.