California Heightens Consumer Protection by Banning the Use of Dark Patterns
California Bans Use of Dark Patterns on the Web
The California Consumer Privacy Act made headlines again this month by passing new regulations banning “dark patterns.” Dark patterns is the term used to describe nefarious tricks deployed by websites or mobile apps that seek to trick users into performing an unintended action (e.g., clicking on an ad, accidentally agreeing to subscribe, downloading an app, etc.) or something they do not want to do.
What Are Dark Patterns and Why is California Banning Them?
These new regulations again put California at the forefront of consumer protection. Although the term, “dark patterns” may not be familiar to the general public, the behavior it describes is widespread and prevalent.
For example, a commonly used dark pattern is where in-game apps may place the “x” button, which typically closes a window, on the upper-left side of the window instead of the upper-right so that when consumers, used to clicking in the upper-right to close the advertisement, react instinctively out of muscle-memory to click the upper-right area, this “intentional” action on the part of the consumer redirects the user to the app's download page instead of closing the advertisement like the user actually intended. Another common dark pattern is where an app or website may utilize purposely confusing language in order to make it difficult for a user to figure out how to navigate out of a website, close moving pop-up ads, or “opt-out” of a mailing list.
More subtle dark patterns also exist in e-commerce transactions where a company or service may make it incredibly easy for a consumer to sign-up or purchase something (usually through a “one-click purchase”), but when the consumer seeks to end the subscription, the website offers no direct contact information or continues to charge the consumer’s credit card even after the account has been “cancelled.”
California Law Considers Use of Dark Patterns Deceptive Practices
As such, privacy experts have lauded California’s new regulations, touting it the first step in both recognizing and prohibiting such deceptive practices. In the language used to describe the new regulations, California actually describes the dark patterns as “deceptive business practices,” which is a legal term of art in many jurisdictions, leading many to believe that this could potentially subject many of these websites, mobile apps, and operators to new lawsuits.
Further, California’s new regulations also require the implementation of a new “Privacy Options” icon, which allows users to always have an “easy button” to opt-out of the sale of their personal information. California will launch a new educational campaign about the icon and intends to make it a mainstay for consumers to rely on and look for when navigating the Internet. Consumers can learn more about dark patterns at darkpatterns.org.
Key Takeaways on California’s Laws Against Dark Patterns
California has made headlines again by passing new strict regulations against the use of “dark patterns” on the Internet. These new regulations:
Require the implementation of a new icon on all relevant websites that will allow users an easy way to opt-out; and
Forbid the use of dark patterns on websites that do business with California citizens.
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