Website designs that try to change your behavior cross a line when they outright deceive, a University of Nebraska-Lincoln researcher says. File Photo by Ritchie B. Tongo/EPA
You open a free app to do one simple thing. Before you even start, a full-screen message asks whether you want to try the paid version. The “Start free trial” button is large, bright and hard to miss. The option to keep using the free version is smaller, buried at the bottom. The same prompt appears again tomorrow. And the day after that.
A lot of people look at screens like that and think, “Surely this has to be illegal.” We even have a name for them, “dark patterns.” They feel pushy. They waste time. They seem designed to wear you down. But in most cases, they are perfectly lawful.
“Dark pattern” is not a legal term with a clear boundary. It is a broad label for digital designs that nudge, pressure, confuse or trap users. As a legal scholar who studies consumer protection and digital design, I think the most important thing for readers to understand is that the label “dark pattern” covers a broad spectrum.
Some of that spectrum is just annoying. Some of it is aggressive salesmanship. And some of it crosses the line into deception or coercion. Federal and state consumer protection laws are mostly aimed at that last category. They do not ban every design choice people dislike, only those that trick or coerce.
Annoying isn’t illegal
That reality may sound unsatisfying, but it is not unusual. Offline life is full of things that are irritating but not unlawful. Think of the cashier who asks whether you want to sign up for the store credit card, then points out the discount you are turning down, then asks again. Most people know exactly what is happening. They roll their eyes, say no and try to shop somewhere else next time.
The same is true online. A repeated pop-up can be obnoxious. A guilt-inducing button can be tacky. But consumers recognize ordinary annoyance for what it is. In many cases, the market answer is simple: Close the app, ignore the pitch or take your business elsewhere.
Similarly, law does not ban persuasive sales pitches just because they are effective. A car salesperson who keeps steering you toward the upgraded model is trying to influence your choice. So is the airline clerk who offers travel insurance. So is the restaurant server who asks whether you want dessert. Salesmanship is nothing new. Digital design often borrows from familiar techniques.
That helps explain why lawmakers cannot simply outlaw “manipulation.” And so many interfaces are built to persuade, openly and lawfully.
What crosses the line
What the federal FTC Act and analogous state consumer-deception statutes usually care about is not whether a design is annoying. They focus on whether the design is likely to mislead a reasonable consumer. That is the core idea in modern consumer protection law.
So a design is likelier to be unlawful when it hides key facts, makes an optional choice look mandatory or tricks people about the effect of the button they are pressing. A fake countdown timer, a disguised ad, a misleading one-click purchase button or a cancellation path that looks finished when it is not are all different from ordinary hard selling. Those designs do not just pressure users; they can deceive them.
That is also why the app maker’s intent is not always the key question. In many consumer protection cases, a company does not get a free pass just because no one said, “Let’s trick people.” The legal question is often about effect: What would a reasonable user likely understand from this screen?
Research on dark patterns reinforces that concern. Even relatively mild designs can push people into choices they would not otherwise make. And regulators have increasingly focused on subscription flows, hidden fees and cancellation obstacles for exactly that reason.
Why it feels like dark patterns are everywhere
One reason people might think there are no laws against dark patterns is that they see them so often. But that frequency reflects that the term covers a wide range of conduct, from lawful nagging to outright deception.
It also reflects enforcement limits. Regulators cannot chase every irritating screen on every app and website. They have to prioritize the worst cases. That leaves a lot of borderline conduct in the wild, which makes the whole problem feel bigger and murkier to ordinary users.
So when people ask why there is not a law against dark patterns, the best answer is that there already is, but the law does not prohibit every annoying or high-pressure design. It targets lies, misleading cues and coercive obstacles.
That line can be fuzzy. But the fuzziness is not a mistake. It is what you get when the law tries to separate persuasion from deception in a world full of both.
Gregory M. Dickinson is an assistant professor of law at the University of Nebraska-Lincoln’s Institute for Humane Studies. This article is republished from The Conversation under a Creative Commons license. Read the original article. The views and opinions expressed in this commentary are solely those of the author.
