Online platforms employ mechanisms designed to manipulate and bait users, leveraging unscrupulous tactics that exploit users’ cognitive biases and impact their autonomy. These mechanisms, called dark patterns, are deceptive user interface designs that trick users into making unintended decisions. Harry Brignull coined the term to refer to “tricks used in websites and apps that make you do things that you did not mean to, like buying or signing up for something.”1
These manipulative designs have significantly influenced the digital market by collecting data, limiting consumer choice, and impacting consumer preferences. Dark Patterns enable companies to remain dominant by restricting market access and could be “unfair or deceptive acts or practices,” violating antitrust laws, including the Federal Trade Commission (FTC) Act.2 Specific laws address issues arising from dark patterns, for example, the California Privacy Rights and Enforcement Act, declares “agreement obtained through use of dark patterns [as] not constitut[ing] consent.”3 This Post highlights the potential antitrust implications of Dark Patterns.
Misinformed consent and unconscious decisions could be considered as being “deceptive” or “unfair” practices.4 Dark patterns include practices that nudge consumers to disclose personal data they would otherwise not consent to. Online platforms can obtain consent through passive acceptance, where users opt out, or explicit agreement, where users opt-in. However, these forms of consent have proven ineffective since consumers are neither aware of the actual terms nor the exploitation of the data collected.5 Quick shipping returns and genuine recommendations on e-commerce platforms are examples of practices that enhance consumer choices.6 However, practices such as incessant pop-ups (nagging) and forcing consumers to share data by framing the refusal option negatively (confirm shaming) could deceive and distract consumers from making their intended choice.7 By amassing significant data, companies utilize their network effects to strengthen their market dominance.8
Dark patterns lead consumers to make choices which can result in actions taken without full awareness or consent, such as unintended subscriptions and accidental clicks on advertisement pop-ups with barely visible close buttons.9 The dominance of a limited number of companies with extensive access to consumer data exacerbates this issue.10 Consequently, these manipulative practices often ensnare consumers, compromising their privacy and well-being to benefit these dominant companies’ ecosystems. Dark patterns engage in dubious tactics that prey on human psychology and cognitive biases, preventing consumers from making fully informed choices or coercing them to make a particular choice.11 For example, an iPhone user can only use iCloud to back up their WhatsApp chats and media. This creates a scenario where consumers are locked into using only iCloud, making switching to another cloud service difficult. Such practices ultimately create barriers to entry for competing cloud service providers.12
The FTC implemented a strict policy towards dark patterns when it filed cases against Amazon and Publishers Clearing House.13 In June 2023, the FTC filed a complaint against Amazon for allegedly misleading consumers into paying for an Amazon Prime subscription.14 The filing alleged that tricking and trapping consumers was an unfair trade practice under Section 5 of the FTC Act and a violation of the Restore Online Shoppers’s Confidence Act (ROSCA).15 Amazon had placed significant terms such as auto-renewal at the bottom of the page, making it difficult to cancel the subscription by having a long, drawn-out process. Moreover, Amazon dissuaded consumers from canceling by adopting tactics such as a bright yellow button to highlight Prime benefits and warning messages like “you will lose access to your Prime benefits” near the cancel button to induce fear of loss.16 During the same month, the court directed Publishers Clearing House to pay 18.5 million USD due to its alleged use of dark patterns, which made consumers believe that a purchase was required to enhance their chances of winning sweepstake entries.17 The FTC is actively pursuing these instances as unfair, deceptive, and harmful competition. The Director of FTC’s Bureau of Consumer Protection, Samuel Levine, stated, “firms that continue to deploy deceptive design techniques [are] on notice.”18
Businesses, and big-tech companies in particular, have adopted dark patterns to eliminate competition, gather data, and limit consumers’ choices regarding product options. For example, on March 21, 2024, the Department of Justice (DoJ) filed an antitrust case against Apple for monopolizing the smartphone market.19 The DoJ’s filing alleged that Apple used its iPhone dominance to block new innovative apps from being released in the App Store, limit the options and customizability of messages sent from Android to iPhone, and restrict the interoperability of different smartwatches with the iPhones.20 The limitations imposed on messaging between Android and iPhone users (green bubble issue) have drawn the attention of the DoJ. Arguably, color coding Apple to Apple messages as blue and Android to Apple messages as green is also a dark pattern. Apple intentionally chose to use blue color for its iMessage user interface to optimize color contrast, and enhance legibility to deliver a better user experience.21 As opposed to this, it uses green color when texts are exchanged with an android user to reduce color contrast and readability.22 Since green bubbles provide a lower color contrast forcing users to “exert cognitive burden” to read the messages, it can be categorized as a dark pattern attempting to lure more users to use iMessages.23 US Attorney General Merrick Garland spoke about the green bubbles that appear when messages are sent from an Android to an iPhone. Garland stated, “Apple knowingly and deliberately degrades quality, privacy, and security for its users” and “limit[s] functionality” by using certain design features such as green bubbles on its platforms.24
While traditional antitrust notions have focused on regulating prices, scholars contend that enforcing antitrust laws also address concerns related to “innovation, quality, and consumer choice.”25 Accordingly, the antitrust framework should proactively penalize the use of deceptive dark patterns to promote healthy market competition and consumer welfare practices in the digital arena.