ABA Webinar Exploring Dark Patterns Summarized by Analysis Group’s Rene Befurt and Helene Rowland
October 24, 2023
Analysis Group Principal Rene Befurt and Senior Analyst Helene Rowland have published a summary of the American Bar Association (ABA) webinar “Consent Flows and Cancellation Processes: How To Spot Dark Patterns?” on the ABA’s Antitrust Law Section website. This summary condenses the main themes of an hour-long conversation among panelists that included Stephanie Liebner (US Federal Trade Commission (FTC)), Koen Pauwels (Northeastern University), and Mihir Kshirsagar (Princeton University). The webinar was moderated by Dr. Befurt and hosted by the ABA’s Media and Technology Committee.
Dr. Befurt and Ms. Rowland summarize the panelists’ discussion of how regulators define, detect, and evaluate dark pattern conduct, especially within the context of government actions and private suits against digital companies. Dr. Befurt opened the discussion by turning to Ms. Liebner, who gave the FTC’s definition of dark patterns, which included deceptive, manipulative design processes and actions that take advantage of consumers’ cognitive biases, both potentially leading to harmful outcomes. The panelists discussed how to evaluate potential dark patterns in light of consumer preferences and the “reasonable consumer” standard. They then explored the line between firms’ attempts at customer retention and potential deception through dark patterns, and evaluated a variety of empirical evidence that regulators can use to identify and examine alleged dark pattern conduct, such as cross-market data and A/B tests. The discussion concluded with panelists discussing how industries and regulators can build trust with consumers through a commitment to transparency.