Dark Patterns Defined: Examining FTC Enforcement and Developing Best Practices

The Federal Trade Commission is ramping up its enforcement of so-called dark patterns, with $350 million in settlements announced in late 2022. Many businesses may be uncertain what dark patterns are, or may think they do not need to worry. This Article argues that the FTC’s enforcement practices are industry-agnostic and derived from previous enforcement actions over the last decade. By examining these current and past enforcement actions, it is possible to develop a set of best practices around robust user notice and choice and user interface designs that do not present unnecessary hurdles to consumers.

By Ryan C. Smith^[1]

In late 2022, the Federal Trade Commission (“FTC”) announced settlements with two different businesses over the use of so-called “dark patterns.” Defining dark patterns is complicated; the FTC’s definition (“design practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm”) does not provide much enlightenment.^[2] But using dark patterns can be costly: the first settlement in 2022 was a $100 million settlement with Vonage Holdings, a cloud communications provider.^[3] The second was a $245 million settlement with Epic Games, Inc., maker of the popular video game Fortnite.^[4] While these two enforcement actions represented the first time the FTC specifically named dark patterns in a complaint, they were not harbingers of an unexpected sea change. In 2021, the FTC held a