"Dark Patterns" Loom Large In New FTC Staff Report

No, we're not talking about sinister sewing guides, but rather practices or formats that may manipulate or mislead consumers into taking actions they would not otherwise take.

We untangled the topic of so-called "dark patterns" in two in-depth blogs earlier this year, available here and here. At that time, we noted there was a common thread between practices regulators were calling "dark patterns" and practices that have been core elements of consumer protection law and policy for years. We concluded that, despite the catchy new terminology, it did not appear we'd be seeing a new legal standard.

The FTC's newly released dark patterns staff report may lead us to pause and reconsider. While the majority of identified practices fall squarely within the FTC's prior enforcement activities (e.g., hidden fees, improper disclosures, bait-and-switch offers), the report also weaves in a handful of practices that may be more of a stretch under existing law, signaling a