What’s Lurking in the Shadows of Dark Patterns?

By: Linda Coniglio, Information Governance and Privacy Specialist

It’s that time of year when pumpkin sales soar, horror movies are plentiful, and everyone plans to dress as some spooky character for trick or treat. It’s the tricksters we need to be aware of – the Captain Jack Sparrow type. As a sea pirate, Jack is confident in every situation. He cheats his way through every game and is quick on his feet. He is the one who knows how to play certain games to win real money! He’s a thinker and a planner and always two steps ahead of his opponents. His true intentions are known only to him.

Tricksters aren’t just for Halloween. You may encounter them daily. Dark patterns are the Jack Sparrow’s of website and app design.

What are dark patterns?

Dark patterns are tricks used in websites and apps that cause you to do things you didn’t mean to do such as buying something that just showed up in your shopping cart because you selected another item or when you want to unsubscribe from a mailing list but the unsubscribe button is buried in paragraphs of text at the bottom of the page.

Dark patterns aren’t just poor UX development, nor are they mistakes. They are carefully planned and executed with an understanding of human psychology. Dark patterns don’t typically have the consumer’s best interests in mind. Instead, they drive behavior toward company priorities. If you’re like most people, you don’t read every word on every page. It’s human nature to skim and make assumptions; dark patterns take advantage of these human tendencies.

The term was first coined by Harry Brignull a UX specialist. He explains that dark patterns come in many forms and trick people out of time or money, or into forfeiting personal data. Harry defines several types of dark patterns:

  • Trick questions: You respond to a question that tricks you into giving an answer you didn’t intend.
  • Roach motel: You sign up for something easily but then find it very difficult to get out.
  • Privacy Zuckering: You are tricked into publicly sharing more information about yourself than you intended (Yep, named after Mark Zuckerberg, Facebook CEO)
  • Misdirection: The design purposefully focuses your attention on one thing to distract your attention from another
  • Confirmshaming: The act of guilting the user into opting into something. The option to decline is worded in such a way as to shame the user.
  • Forced Continuity: When your free trial with a service comes to an end, and your credit card silently gets charged.

A few are listed above; click to see his full list.

Are they legal?

Kinda! Lawmakers are taking notice, however. For example, the California Privacy Rights Act (CPRA), which was approved by voters in November 2020, outlaws some dark patterns that trick people into giving companies more data than they intended. A section of the CPRA defines user consent and includes this statement, “. . . agreement obtained through use of dark patterns does not constitute consent.” This is the first time “dark patterns” appear in US law, but it’s likely not the last. The Washington privacy bill introduced in January 2020 copied verbatim California’s dark pattern language. The Washington privacy bill did not pass, however.

The Children’s Online Privacy Protection Act (COPPA) gives the FTC authority over privacy violations against children under 13. This law includes many dark pattern types but doesn’t mention the term specifically.

What can you do?

Education is your superpower against the tricksters. Knowing companies have talented people testing and experimenting with design techniques guiding you towards the company’s most desirable responses is a good start. Understanding your own tendencies related to making assumptions and carefully reading text adds to your defense. Publicly calling out companies also helps stop the tricksters. If a site is called out for misleading customers, the company might take steps to correct the design to keep customers happy.

What can companies do?

Make trust a differentiator! Engaging a reputable design agency to create your website and utilizing ethical business tactics to build consumer trust and brand loyalty can make a big difference. The focus must be on the consumer. Consumers flock to brands they love and respect. According to Gartner, by 2023, companies that earn and maintain digital trust with customers will see 30 percent more digital commerce profits than their competitors. Companies using dark patterns won’t earn consumer trust, and they’ll see their customers go elsewhere for treats.

Have a great day!

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