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The CFPB and FTC have targeted the use of “dark patterns” on websites to influence consumer behavior. We first discuss what regulators consider to be dark patterns and why they are a focus of regulatory concern and look at examples. We then discuss the empirical issues and behavioral theories a company should expect regulators to raise if it is the target of a dark patterns investigation or enforcement action, what proactive steps a company can take to reduce the risk of a dark patterns challenge and the role of A/B testing, the practices most likely to be the focus of future dark pattern challenges by regulators, and principles to consider when designing online interactions with consumers so as to avoid potential dark patterns.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation.
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