Is There a Light at The End of the Dark-Pattern Tunnel?

In the wake of the AMG Capital Management, LLC v. FTC Supreme Court decision which held that the Federal Trade Commission (FTC) does not have the authority to seek monetary relief and is limited to injunctive relief under section 13(b) of the Federal Trade Commission Act (FTC Act), many wonder how the FTC will be able to adequately police the marketplace. At the same time, the unfair and deceptive acts or practices that occur online have only continued to proliferate. These practices have become known as dark patterns. Dark patterns are online interfaces that have been designed to trick users into making decisions they would not have otherwise made and trap them in various unwanted subscription services, slap them with hidden fees, or saddle them with unwanted purchases. The current regulatory regime for policing these dark patterns is inefficient and inadequate because without the ability to seek monetary redress for consumers, the FTC will only be able to hold companies accountable for employing dark patterns through the use of consent decrees and other nonmonetary penalties. This Note argues that an FTC-promulgated rule defining and prohibiting the use of dark patterns will provide enormous benefit to consumers, regulators, and businesses alike. With more certainty and definition, businesses will be able to better comply with regulations. More certainty will also provide regulators with more efficient litigation and enforcement avenues, including monetary redress and civil penalties, and consumers could get a reprieve from being tricked or trapped by bad online actors. As reliance on the internet for commerce and basic life functions continues to increase, it is important that the FTC regulatory toolbox continues to expand with it.

Automated summary

Following the Supreme Court decision on AMG Capital Management, LLC v. FTC, there are concerns about the FTC's ability to police the marketplace effectively. Dark patterns, deceptive online practices designed to trick users, continue to proliferate. This article argues that an FTC-promulgated rule prohibiting the use of dark patterns would benefit consumers, regulators, and businesses, providing clarity, efficient litigation, and protection from deceptive practices.