Dark Patterns and the FTC’s “Click-to-Cancel” Rule

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Aaron Tsui is a junior studying computer engineering and robotics in the School of Engineering and Applied Science interested in technology law and intellectual property.

​While the rapid growth of digital consumerism has created prosperous avenues for businesses and has fundamentally altered the interaction between people and products, it has also allowed for the illegal, unethical, and profit-driven exploitation of vulnerabilities in consumer behavior and psychology.

These subtle exploitations are known as dark patterns, a term the Federal Trade Commission (FTC) defines as “design practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm.” [1] Examples of common dark patterns include using false, albeit enticing, notifications to increase click-rate, tricking consumers to pay for hidden fees,  and intentionally making alternative options less visible. Although charging hidden additional fees and automatically adding items into a user’s cart without their knowledge is unquestionably deceitful, other dark patterns, such as adjusting visibility of certain options, tend to exist in a user experience design gray area, where the line between deception and persuasive design is rather blurred.

The FTC recently took action against a notorious dark pattern known as the ‘roach motel.’ [2]  A ‘roach motel’ dark pattern refers to explicitly designing a service to be easy to sign up for, but extremely difficult to cancel. Common examples include gym membership, newspaper subscriptions, marathon races, and streaming services. Effective January 14, 2025 with a compliance date of May 14, 2025, the Negative Option Rule “requires sellers to provide consumers with simple cancellation mechanisms to immediately halt all recurring charges” along with other provisions. [3] This ruling arises from increasing public complaint, as the FTC has received “70 consumer complaints per day on average [in 2024], up from 42 per day in 2021.” [4]

The European Union (EU) similarly ruled for the protection of consumers through the ‘click-to-cancel’ method roughly three years prior in June of 2022. Following pressure from the EU to adjust its cancellation policies, Amazon now “enable[s] consumers from the EU and EEA to unsubscribe from Amazon Prime with just two clicks, using a prominent and clear ‘cancel button.’” [5]
The FTC Commission Chair Lina M. Khan and the European Commissioner for Justice Didier Reynders both expressed the FTC and the EU’s commitment to eliminating dark patterns and protecting consumers. Khan stated that “the FTC’s rule will end these tricks and traps, saving Americans time and money,” while Reynders similarly stated that “one thing is clear: manipulative design or ‘dark patterns’ must be banned.” [4][5]

While the burden of proof for the FTC to find a practice to be deceptive is still quite large, companies themselves may be dissuaded from continuing the use of dark patterns. Negative reviews and critical feedback from consumers ultimately erode the trust between the company and its current and future consumers. Whether or not this outweighs the click-rate and profit increases from the use of risky and ambiguous dark patterns will likely be a difficult question to answer.
As more consumer spending is done digitally, businesses are expectedly responding to this new and growing phenomenon. The FTC’s recent ruling is undoubtedly a step in the right direction in making that line between deception and innovative design more clear. 

​References:
[1]https://www.ftc.gov/system/files/ftc_gov/pdf/P214800%20Dark%20Patterns%20Report%209.14.2022%20-%20FINAL.pdf
[2]https://vickiortiz.medium.com/welcome-to-the-roach-motel-86b8cd424ea7
[3] https://www.federalregister.gov/documents/2024/11/15/2024-25534/negative-option-rule
[4]https://www.ftc.gov/news-events/news/press-releases/2024/10/federal-trade-commission-announces-final-click-cancel-rule-making-it-easier-consumers-end-recurring
[5]https://ec.europa.eu/commission/presscorner/detail/en/ip_22_4186

​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.