(CNN Business) — An “unsubscribe” option that is a bit hard to find. A little box that you click on, thinking it just takes you to the next page, but it also gives you access to your data. And any number of unexpected charges that appear during the purchase process and were not cleared up beforehand.
Countless popular websites and apps, from retailers and travel services to social media companies, use so-called “dark patterns,” or lightly coercive design tactics that critics say are used to manipulate people’s digital behaviors.
The term “dark patterns” was coined by Harry Brignull, a UK-based user experience specialist and human-computer interactions researcher. Brignull began to notice that when he reported to one of his clients that most of the test subjects felt cheated by an aspect of their website or app design, the client seemed to accept the feedback.
“That’s always intrigued me as an investigator, because normally the point of the game is to find the flaws and fix them,” Brignull told CNN Business. “Now we’re finding ‘flaws’ that the customer seems to like, and they want to keep them.”
To put it in Silicon Valley terms, he realized it was a feature, not a bug.
Brignull began denouncing this practice and soon discovered that he was not alone in his frustration. In 2010, he created a website to document the cases, darkpatterns.org. The site has since changed its name and now features hundreds of examples of various design steps used to trick users into doing something. In the decade since Brignull created the website, the sophistication of digital dark patterns has only grown.
These design tactics have come under renewed scrutiny in recent months, including lawsuits filed against tech companies and bills to protect consumers. But, while some take a hard look at the practice, the issue can be complicated by how intertwined the dark patterns are with the creation of digital services, and even by confusion around the definition of the term.
“Everyone has a different definition,” says Nir Eyal, behavioral designer and author of the widely shared Silicon Valley book, “Hooked: How to Build Habit-Forming Products.” Eyal said he tries to help companies create healthy habits in users’ lives, but his approach is to do it through “persuasive design.”
“A dark boss uses coercion,” Eyal said. “Coercion is getting you to do things you later regret… Persuasion is getting people to do things they want to do, things they don’t regret.” Some coercive versus persuasive tactics may be similar, he said, but he argued that it’s important to see what the design pattern is trying to do.
The use of “streaks,” or the psychological encouragement of people to continue using a product each day to create a habit, can seem like a distraction mechanism in a social media app, or a helpful reminder to keep learning another language through Duolingo, Eyal said.
A growing drive to remove dark patterns
So far this year, multiple lawsuits have been filed against prominent tech companies for their alleged use of obscure patterns to mislead users.
In March, Karl Racine, the Washington DC attorney general, sued Grubhub for allegedly misleading customers about hidden fees “by bundling them with taxes at the time of purchase,” according to a lawsuit announcement. Racine’s office added: “This practice constitutes a ‘dark pattern’.” In a statement at the time, a Grubhub spokesperson told CNN that its practices “have always complied with DC law” and noted that “many of the practices in question have been discontinued.”
Multiple attorneys general have also sued Google over its alleged use of dark patterns to push users to provide more location data. Racine, who was also a party to that lawsuit, claimed that Google “uses tricks to continually try to track a user’s location.” A Google spokesperson told the Washington Post in January that the case “is based on inaccurate and outdated claims about our setup.”
Lawmakers from the Beltway to Brussels have recently started taking note of dark patterns as well. A bipartisan group of six US lawmakers last month released a joint declaration in support of legislation that seeks to crack down on dark bosses, more than a year after the bill was presented to legislators. The text of the bill states that it is intended to “prohibit the use of exploitative and deceptive practices by large online operators and promote consumer welfare in the use of behavioral research by such providers”.
The Federal Trade Commission issued late last year a new application policy statement in which it warns companies “against deploying illegal shadow patterns that mislead or entice consumers into subscription services.” The new policy statement cites three key requirements that companies must follow: clearly and conspicuously disclose all material terms of the product or service; obtain the express informed consent of the consumer before charging him; and offer an easy and simple cancellation process to consumers. The agency added that it is stepping up its enforcement in response to “a growing number of complaints about financial harm caused by deceptive registration tactics, including unauthorized charges or uncancelable ongoing billing.”
In Europe, a Norwegian consumer advocacy group filed a complaint with the country’s consumer protection agency last year, alleging that the design of Amazon’s Prime cancellation process breaches European Union law. The Norwegian Consumer Council informed the authorities that canceling a subscription required scrolling through six pages and making several complex choices. In a release Since then, the group has alleged that Amazon “manipulates consumers to keep them subscribed.”
Just this month, the EU’s consumer protection arm ad that Amazon will change its Prime cancellation practices to comply with EU consumer rules. This includes allowing customers to unsubscribe from Prime “with just two clicks” as well as “using a prominent and clear ‘cancel button’.” In a public statementAmazon said “transparency and customer trust are top priorities for us. By design, we make it clear and simple for customers to both sign up for and cancel their Prime membership.”
Eyal says he believes regulation around dark patterns is necessary, but says there are other ways to get companies to stop engaging in this behavior, including simply drawing attention to it. He cited Brignull’s website, for example, as a historical repository of various dark patterns over the years, many of which have stopped after being flagged.
“When companies are publicly shamed and reprimanded for using these techniques, they almost always change that dark pattern,” he said. For example, he pointed out that it used to be very common for companies to use the “cast-in-the-basket technique” when buying a flight online to add flight insurance and other expenses that customers did not perceive until the moment of purchase. .
“When people found out this was happening, they not only didn’t want to do business with those companies, they told all their friends not to do business with them,” Eyal explains. “So what you find is that when companies are shamed when they use these dark patterns, they almost always stop doing it.”
Brignull, for his part, said he has spent time testifying as an expert witness in some class action lawsuits involving shadow employers in the UK. “Scams don’t work when the victim knows what the scammer is trying to do,” Brignull said. “If they know what the scam is, they won’t be fooled, which is why I’ve had so much fun exposing these things and showing them to other consumers.”