“The Sell Sider” is a column written by the sell side of the digital media community.
Today’s column is written by Julie Rubash, chief privacy counsel at Sourcepoint.
Dark patterns – or website designs that manipulate users into performing specific actions – are widespread these days. In fact, one recent study from Princeton examined 11,000 shopping websites and found 1,818 instances and 15 different types of dark patterns.
As this practice becomes more common, legislators are taking action. In 2020, the U.S. federal government introduced the Deceptive Experiences To Online Users Reduction Act (the DETOUR Act). If enacted, the legislation would make dark patterns punishable under the FTC Act. Then, in 2021, California and Colorado signed consumer privacy laws that stated dark patterns were insufficient to meet the definition of “consent.” And, most recently, the French data protection authority, the CNIL, fined Google and Facebook $238 million for what regulators deemed to be confusing cookie consent experiences.
But to effectively serve the interests of privacy-conscious readers, publishers would be wise to get ahead of impending legislation. Be transparent in 2022: Steer clear of dark patterns and lead with trust and privacy instead.
Recognizing dark patterns
Dark patterns take on many forms. Simply put, when a pop-up is designed in a way that encourages users to agree to something they don’t understand, or where the desired behavior appears to be the more obvious choice, publishers may be using dark patterns.
Each law outlined in this article has unique legislation surrounding dark patterns, but other examples might include:
- Labeling the desired option (e.g., “accept all cookies”) as the “recommended option”
- Making it difficult to decline or opt out of cookies by forcing users to click several times
- Continuing to ask questions after a user opts out (e.g., “Are you sure?”)
- Forcing a user to wait longer if they say “no,” or delaying opt-out confirmation
- Using confusing language (e.g., “Do you want to decline to provide your information?”)
- Using double negatives (e.g., “Do you prefer not to decline?”)
While the line between legitimate persuasion tactics and genuinely misleading designs can be blurry, many companies are taking advantage of that ambiguity. They’re encouraging users to accept cookie preferences without a second thought.
At a time when consumers are losing faith in the media, such behavior doesn’t strengthen trust.
Leading with privacy
If publishers want to regain the trust of increasingly privacy-conscious consumers, they will need to take a consumer-first approach to the user experience.
After all, consumers are increasingly privacy-aware and care about the protection of their data. By being transparent and honest, publishers can build trust and create meaningful relationships with them, doing their part to restore faith in the advertising industry.
Plus, the good news is there’s an easy fix for publishers seeking to move away from dark patterns. By conducting user research and A/B testing, publishers can design messaging with transparency as the guiding principle. The key? Give users clear choices explained in clear language to regain consumer trust – and nurture it.
Advertisers and brands have a role to play, too, prioritizing privacy standards throughout the supply chain. Trusted interactions are more valuable. More ethical experiences lead to better outcomes for everyone.
The consequences of continued dark patterns
Publishers that continue to use dark patterns may end up drawing the ire of consumers, legislators and advertisers. This won’t help move the industry into a truly privacy-first future. Failure to change will almost certainly result in churned customers and potential fines.
Take, for example, the recent lawsuit against Google. Attorneys general from D.C. and three states are claiming that Google deceived consumers to gain access to their location data using dark patterns to induce users into giving away location data, “inadvertently or out of frustration.”
There is hope, though.
Ecosystem participants are working to align incentives so advertising spend can be redirected toward the publishers who are investing in transparent consumer experiences.
The sooner publishers adapt to the privacy-driven world, the stronger their relationships will be with audiences and advertisers alike.
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