Abstract
Dark patterns, in the words of the design expert who coined the term, are ".. . tricks used in websites and apps that make you do things that you didn't mean to, like buying or signing up for something."1 The FTC, in its 2022 Staff Report on the subject, defined them similarly as ". . . design practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm."2 Endemic to the digital retail space, dark patterns subvert consumer decision making, resulting in inflated spending, widespread privacy violations, and the erosion of consumer identity. They stem from a metric-based design philosophy lacking in ethical guardrails and powered by the informational advantage enjoyed by firms sitting on troves of customer data. Though these imbalances make the area ripe for intervention by consumer protection authorities, the FTC's attempts to challenge dark patterns, mostly through §5 of the FTC Act, have seen only modest results. The reasons for this are clear existing consumer protection statutes are too blunt to parse the nuanced, varied ways in which digital platforms manipulate online shoppers. This paper suggests that consumer protection law, rather than attempt to prohibit each of the countless types of design that might qualify as dark patterns, should target dark patterns across the board by proscribing the subversion of consumer decision making itself.
First Page
30
Recommended Citation
Daniel
Nicastro
Subversion by Design,
38
Loy. Consumer L. Rev.
30
().
Available at:
https://lawecommons.luc.edu/lclr/vol38/iss1/3