Shining a Bright Light on Digital Dark Patterns

Our special guest is Andrew Nigrinis, PhD, who formerly served as Enforcement Economist for the Consumer Financial Protection Bureau. We first discuss what is meant by “dark patterns” and the types of digital practices identified by the CFPB and Federal Trade Commission as “dark patterns.” We then look at the CFPB ‘s position regarding the use of “dark patterns” as an unfair, deceptive, or abusive act or practice under the Consumer Financial Protection Act, the FTC’s position regarding the use of “dark patterns” as anticompetitive and/or a violation of the FTC Act prohibition of unfair or deceptive acts or practices, and the relationship between “dark patterns” and behavioral economics. We also look at other federal laws that may be used to target “dark patterns,” CFPB and FTC enforcement actions involving “dark patterns,” and state regulation of “dark patterns.” We conclude with a discussion of best practices for companies to consider in avoiding legal challenges based on “dark patterns” claims.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Michael Gordon, Of Counsel in the Group, and Ed Rodgers, a partner in the firm’s Antitrust and Competition Group.