ABA Journal – Generative AI and Guidance on Abusiveness May Illuminate a New Focus on “Dark Patterns” for Enforcement and Related Consumer Research:

• Consumer Protection enforcement authorities are showing a new interest in “dark patterns” which they describe as manipulative design practices that subvert consumer choice, particularly in digital settings.
• This interest likely stems from changes in information technology and the introduction of generative AI that change how markets are designed and how firms interact with consumers.
• These marketing changes have the capacity to amplify negative effects of marketing practices that have not traditionally been deemed violative but fall in the definition of “dark patterns. Consumer Protection authorities appear to be interested in using deception, unfairness and abusiveness frameworks in this context.
• While the use of the dark patterns label may implicate a much wider, and more subtle, range of practices, the toolset to assess their effect on consumers, including surveys and market outcome analysis remain the same.
• Bringing Dark Patterns to Light, FTC Report, September 2022