United States: FTC Workshop Reports Increased Concentration of Dark Model Regulation
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On April 29, 2021, the Federal Trade Commission (FTC) hosted a workshop, entitled “Bring dark patterns to the light, “to examine” dark patterns. “In her opening remarks, Acting FTC President Rebecca Kelly Slaughter broadly described” dark patterns “as” UI designs that manipulate users to that they take unintended actions that may not be in their best interests. “several examples of dark patterns, including confusing undo procedures that force users to navigate multiple screens, online apps that hide physical terms of a product or service through the use of discreet drop-down links and automatic scrolling features, and the addition of products to users’ carts without their knowledge or consent.
The workshop explored topics such as the design practices that constitute digital dark patterns, the impact of dark patterns on consumers – and in particular on groups that may be particularly susceptible to manipulation, such as children. , older people or communities of color – and future strategies. that the FTC can take to deal with the gloomy patterns.
As many panelists noted throughout the workshop, dark patterns are not new to the market or under government scrutiny. The FTC has worked for years to combat unfair and deceptive design practices through its authority under Section 5 of the FTC and laws like the Restoring Confidence Online Shopper Act. States have also initiated coercive measures related to the dark grounds. Jennifer Rimm, assistant attorney general in the District of Columbia’s attorney general’s office, spoke about recent consumer protection lawsuits her office brought against delivery companies, hotels and social media platforms on dark grounds such as as inadequate fee disclosures, bait. -and-change tactics that prevent consumers from shopping around and hard-to-find privacy settings.
Speakers also discussed how federal and state legislatures have attempted to address grim patterns by expanding the powers available to initiate enforcement action. In their opening remarks, US Senator Mark Warner and Congresswoman Lisa Blunt Rochester expressed their intention to incorporate the ideas from the FTC workshop into future legislative efforts. The two lawmakers previously introduced the Reduction of Misleading Experiences for Online Users (DETOUR) Act in the Senate and lodge, respectively, which would have prohibited large online platforms from using intentionally deceptive interfaces to extract data from online users. Additionally, states have begun to tackle the dark patterns with consumer protection laws like the California Consumer Privacy Act (CCPA). In March, the California Attorney General released amendments to the CCPA Implementation Regulations prohibit the use of exclusionary methods which are “designed for the purpose or [have] the substantial effect of subverting or hindering a consumer’s choice to opt out “- such as:
- Use confusing language, such as double negatives (eg, “Don’t sell my personal information”);
- Require consumers to click or listen to the reasons why they should not submit an opt-out request before confirming their request; or
Last November, Californian voters also ratified the California Privacy Rights Act, which, among other things, revises the CACP definition of consent to exclude any consent obtained through the use of dark grounds.
In his closing remarks, Daniel Kaufman, the acting director of the FTC’s Office of Consumer Protection, declined to urge the agency to issue additional rules, policy statements or enforcement guidelines, but warned that nothing is out of place and that businesses should expect a continued aggressive crackdown on the use of dark grounds at the federal and state levels.
The FTC is still seeking public comment on the following topics until May 29, 2021:
- Definition of dark patterns;
- Prevalence of dark patterns;
- Factors affecting the adoption of the dark pattern;
- Dark models and machine learning;
- Effectiveness of dark patterns;
- The misdeeds of dark patterns;
- Consumer perception of dark patterns;
- Market constraints and self-regulation; and
Additional information on the above topics and how to submit comments is available here.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought on your particular situation.
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