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The Evolving Legal Risks for Dark Patterns: Avoiding Unlawful Business Practices Under Increased Regulatory Scrutiny

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, September 12, 2023

Recorded event now available

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This CLE webinar will discuss the current challenges in online contracting based on the rise in regulatory scrutiny of dark patterns by the Federal Trade Commission (FTC), the Consumer Financial Protection Bureau, and other regulators. The panel will explain digital dark patterns and tips for avoiding unlawful online business practices.

Description

"Dark patterns" is a term that U.S. authorities are increasingly using to refer to interface online design strategies that manipulate users into making choices they likely wouldn't have otherwise made and that may cause them harm. With the growing concern about these harms, lawmakers and consumer protection agencies are leveraging federal and state laws with staggering penalties to stop businesses from using illegal dark patterns in their online interfaces.

The FTC has provided guidance and tips for companies to mitigate the use of dark patterns through website design elements. Generally, the FTC's guidelines suggest that when designing user interfaces, businesses should not only look to the effect their design choices have on sales, click-through rates, or other profit-based metrics, but also at how those choices affect consumers' understanding of the material terms of the transaction. The FTC is actively bringing cases against companies for allegedly using dark patterns to manipulate consumers.

The new state privacy laws that are popping up around the country also create prohibitions against the use of dark patterns. California and Colorado have the most specific obligations for dark patterns that may be potentially relevant for U.S. businesses, but at least 12 states around the country have some form of a comprehensive privacy law that could regulate companies' contracting activities. These laws generally permit state attorneys general to bring enforcement actions against violating companies, which means that state regulators may soon follow the FTC's lead on enforcing dark patterns.

Listen as our authoritative panel discusses the legal and practical issues associated with online contracts and the increased scrutiny regarding dark patterns. The panel will provide examples of unlawful dark patterns and suggest measures to mitigate the risk of a potential regulatory enforcement action.

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Outline

  1. Definition of dark patterns
  2. Application of U.S. law (FTC, state comprehensive privacy laws, etc.)
  3. Examples of dark patterns
    1. Misleading consumers and disguising ads
    2. Making it difficult to cancel subscriptions or charges
    3. Burying key terms and junk fees
    4. Tricking consumers into sharing data
  4. Regulatory efforts to curb dark patterns
  5. Interface design elements to avoid allegations that business practices constitute unlawful dark patterns
    1. Elements that induce false beliefs
    2. Dark patterns that hide or delay disclosure of material information
    3. Elements that lead to unauthorized charges
    4. Elements that obscure or subvert privacy choices
  6. Practical considerations and key takeaways

Benefits

The panel will review these and other key issues:

  • What are examples of illegal dark patterns?
  • How do the FTC Act and state comprehensive privacy laws apply to dark patterns?
  • What guidance has the FTC and other regulators provided to mitigate the use of dark patterns?
  • What lessons can be learned from dark patterns cases?
  • How should businesses design their user interfaces to avoid the use of dark patterns?

Faculty

Jessani, Ali
Ali A. Jessani
Senior Associate
Wilmer Cutler Pickering Hale and Dorr

Mr. Jessani counsels clients on the privacy, cybersecurity and regulatory risks presented by new and proposed uses of...  |  Read More

Nahra, Kirk
Kirk J. Nahra
Co-Chair, Big Data Practice; Co-Chair, Cybersecurity and Privacy Practice
Wilmer Cutler Pickering Hale and Dorr

Mr. Nahra has been a leading authority on privacy and cybersecurity matters for more than two decades. He is the winner...  |  Read More

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