Two days ago, tech support deleted two weeks' worth of research with one over-confident, permissionless click of an X in the upper right corner of a tool bar that came up after a restart. 129 tabs were erased and 120 of them could not be recovered. Lesson learned. I should have bookmarked them all!
So, I return to the deep and dirty well of so-called "Dark Patterns" because they are top of mind, and the FTC is (sort of) on the warpath about them.
In a nutshell, "dark patterns" are hidden tricks that companies deploy to trick users into making choices that they would not otherwise have made, or spending more than they might have intended.
Strictly speaking, I am not sure if "browsewrap" and "clickwrap" count as a dark pattern, but I came across a doozy this week. A homeowners' association management company has a specialized, automated website that they want all homeowners in the association to join. First, one must click one of those "I Agree" boxes to prove that one has read all the terms of use and other contractually binding terms and conditions.
That is "clickwrap". You at least have the opportunity to click a link and read the TOU before clicking the box. "Browsewrap" is worse. You are deemed to have agreed to all the terms simply by visiting the site.
The terms on this site included a Miscellaneous Clause that gave the management company the right to change the contract without telling the users, and we users agree to be bound by the contract including by any unknowable changes, and accept full legal responsibility for not knowing what we'd agreed.
Also this week, I spent some time looking at pricey apartments and reading the reviews written by residents (or so they claimed). Somewhere in the very low-starred rankings, a residential whistle blower disclosed that the apartment management gives rent discounts and awards lottery prizes to residents who write glowing reviews.
That is surely shady.
It would be a whole lot less shady if the residents disclosed --as part of the review text-- that they had received valuable compensation as payment for writing a five star review.
The FTC (Federal Trade Commission) has published a report titled, "Bringing Dark Patterns To Light" which gives useful guidance to website owners about what sorts of manipulative dirty tricks the FTC might take a dim view of. (Apologies for the non-ACT grammar!)
Legal bloggers Christine Lyon and Emily Parfitt for the A Fresh Take blog run by the lawfirm Freshfields Bruckhaus Deringer LLP summarize the report and explain the very interesting, four main categories of dark patterns which are: to induce false beliefs; to hide or delay disclosure of important information; to obscure or subvert privacy elections; and to add on extra charges without clearly disclosing them.
If you are older, or color blind, you should read the blog article. Some of the examples of dark pattern behavior are truly --pardon the pun-- eye-opening.
Legal blogger Jeff Greenbaum of Frankfurt Kurnit Klein and Selz PC (whom I have probably quoted before, and perhaps even on this topic) shares a strongly worded take on dark commercial patterns and the bad choices that they deliberately (allegedly deliberately) induce consumers to make.
His focus is not on the FTC report but on the OECD report.
https://advertisinglaw.fkks.com/post/102i0ay/oecd-report-highlights-concerns-over-dark-patterns
"Dark commercial patterns are business practices employing elements of digital choice architecture, in particular in online user interfaces, that subvert or impair consumer autonomy, decision-making or choice. They often deceive, coerce or manipulate consumers and are likely to cause direct or indirect consumer detriment in various ways, though it may be difficult or impossible to measure such detriment in many instances."
Jeff Greenbaum's blog is worth reading in addition to the Fresh Take blog because it also mentions games and cookies, and lists seven (7) rather than 4 key categories of dark patterns including the use of force... which rather reminds me of the HOA clickwrap... and of "nagging" and sneaking and creating a fake sense of urgency.
For details, explanations and examples, read Jeff's blog.
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