In an enlightening discussion during a recent Consumer Finance Monitor Podcast, Andrew Nigrinis, PhD, a former Enforcement Economist for the Consumer Financial Protection Bureau (CFPB), offered his insights on the concept of “dark patterns” and how the practice is regarded by various regulators.
The term “dark patterns” refers to the types of digital practices that may manipulate users’ behavior online. These tactics have attracted significant attention from regulators including the CFPB and the Federal Trade Commission (FTC), particularly due to the manipulative and potentially deceptive nature of these practices.
From a legislative perspective, the CFPB is considering the use of “dark patterns” as an unfair, deceptive, or abusive act or practice under the Consumer Financial Protection Act. Such a categorization would have significant implications for digital platforms, online service providers, and their legal teams, leading to a need for closer scrutiny and potential modification of digital practices.
The FTC, on the other hand, also seems poised to clamp down on these digital practices. While the exact details of the regulator’s position remain to be fully unveiled, the increased awareness and ongoing discussions signal a larger regulatory interest in the online consumer experience. A potential shift in policy could have far-reaching impacts not only for corporations and online service providers, but also for consumers who navigate the digital landscape.
Thus, the potential for greater regulation in this area suggests the need for companies to reassess their online practices. A proactive approach might involve seeking counsel on what current practices could fall into the category of “dark patterns” and strategize on how to address them appropriately. For legal professionals working in corporate settings, a better understanding of “dark patterns” and the regulatory landscape might prove useful for aligning business practices with future regulatory trajectories.