California Bans ‘Dark Patterns,’ Outlawing a Trick for Selling Your Data

A rendering of a maze
The practice isn’t relegated only to the dark corners of the web. A study found that about one out of every 10 websites used dark patterns.

The state that’s at the forefront of consumer privacy protections in the U.S. has added a new protection, banning the use of so-called "dark patterns” that are used to trick or frustrate people into agreeing to the sale of their data online.

California banned the practice as of March 15, 2021. Dark patterns use confusing language or a burdensome series of steps and clicks aimed at making it difficult for users to perform certain actions, such as opting out of the sale of their data. Dark patterns have also been used to make it difficult to cancel subscriptions and to pressure buyers into making decisions that benefit the seller, among other largely underhanded aims.

The practice isn’t relegated only to the dark corners of the web. According to Business Insider, a 2019 study by researchers at Princeton University and the University of Chicago found that about one out of every 10 websites used dark patterns.

Other studies named well-known companies: Google and Facebook used dark patterns to pressure people into making decisions that compromised their privacy, according to one study, and, according to another, the stock trading platform Robinhood used dark patterns to get users to make trades.

Now California is doing something about it. Its law would give violating businesses 30 days to change their website before the state would seek to impose a civil penalty. Washington state has also proposed a similar law in its Senate.

"California is at the cutting edge of online privacy protection, and this newest approval … clears even more hurdles in empowering consumers to exercise their rights," California Attorney General Xavier Becerra said. "These protections ensure that consumers will not be confused or misled when seeking to exercise their data privacy rights."

Growing Action for Consumer Privacy

The push for online privacy protections is only growing in legislatures, as it is in the marketplace.

California’s ban on dark patterns extends a series of consumer privacy protections enacted in large swaths of the globe in recent years.

The landmark legislation was the European Union’s General Data Protection Regulation (GDPR), a broad set of laws that took effect in 2018 that applied to any company doing business in a European Union country. About the same time, Japan enacted an expansion of its own consumer privacy law. Shortly after that, Brazil enacted a consumer privacy law.

California moved to the front of the line for consumer privacy in the U.S., enacting the California Consumer Privacy Act (CCPA), described as "GDPR-lite,” which took effect on Jan. 1, 2020.

The push for consumer privacy should be heeded, even by companies who aren’t technically bound by some of the laws. The push for online privacy protections is only growing in legislatures, as it is in the marketplace. Companies striving toward consumer privacy protections for its current customers, and as a way to attract more customers, can effectively compel whole industries to comply in order to compete.

"The CCPA is a really positive step forward for consumer privacy in California, and we can hope that other states will follow suit," as the state Attorney General Mr. Brignull said.

What Do You Need to Do?

Tricking or frustrating consumers into actions they don’t want to take isn’t the type of experience that brings customers back.

A company that’s using dark patterns and wants to continue to use them technically could block IP addresses and/or zip codes in California from its website so that the company isn’t peddling dark patterns where the law prohibits.

Of course, cutting out California’s $3.2 trillion economy, which ranks behind only four countries, might have a deleterious effect on business. And even if blocking all of California were feasible, there’s still the matter that governments and the marketplace are increasingly taking steps toward enhanced consumer privacy and that another law or market factor would eventually compel the dark pattern ban, anyway.

Lucrative as it may seem, and despite the extent to which technology behemoths may be able to get away with it, tricking or frustrating consumers into actions they don’t want to take isn’t the type of experience that brings customers back. The direction to go for almost all companies using dark patterns is to simply discontinue using them.

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