Dark Patterns - A New Legal Standard or Just a Catchy Name? (Part Two)

In Part One of this discussion, we provided background on the concept of dark patterns and analyzed some recent examples from State AG enforcement. We concluded that, in alleging dark patterns, State AGs are building primarily on existing precedent governing deception and unfairness but also are trying to push the envelope. Whereas earlier precedent mostly focused on false and hidden information, some of the State’s current allegations lean more towards coercion and the impairment of voluntary action.

In this episode (Part Two), we examine the FTC’s approach to this issue, now and in the past. Here, we conclude that, despite the new terminology, the practices that comprise today’s dark patterns have been core elements of FTC law and policy for years. So far – and we emphasize so far – dark patterns is a catchy (and catch-all) name for a variety of longstanding and well-known practices that trick people into making choices that they would not otherwise make.