Making dark patterns illegal | Musings on the ethics of persuasive design
This article is inspired by a discussion I’ve had today with my former MSc HCID course mates, about a news article highlighting a landmark event — California banning companies from using dark patterns.
These thoughts are somewhat armchair-ish, based on my reality of working as a UX designer, and also as someone with a certain amount of legal knowledge (from my previous architectural career which included the study of construction law). If you know more than me on the subject, I would love to hear from you!
What is a dark pattern?
If you work in digital design, you will roll your eyes at this question. Everyone knows, right? The famed Harry Brignull coined the term in 2010 to describe the “tricks used in websites and apps that make you do things that you didn’t mean to.”
While technically, dark patterns could be seen to overlap with the persuasive design umbrella, there is a fundamental difference between a dark pattern and the ethical persuasive design practices. The former manipulate users into unwanted behaviour. The latter aim to help the users reach their goals through persuasive design methods, while maintaining transparency of the designer’s intent throughout the user experience.
On the one hand, we have a dodgy e-commerce website that tricks users into accidentally buying unwanted items. On the other, we have a quitting smoking app that declares and maintains its persuasive biases and its intent to help users achieve their quitting smoking goals. Yes, there are many similarities in the design methods between the two. No, they are two entirely different kettles of fish. But, at times, the lines between the two could get a little blurry.
BJ Fogg’s seminal book — one of the most frequently quoted sources in persuasive design literature — Persuasive Technology: Using Computers to Change What We Think and Do (2003), lays out a 7-step methodology for ethical persuasive design. It is the most extensive and thorough ethical checklist for persuasive design I have come across, and it deserves to be covered in a separate post (watch this space!).
But back to California and the dark patterns. What issues might the practitioners of this new piece of legislation face in the near future?
A sliding scale
One issue is that of scale. If, say, Blackadder Heating and Plumbing Ltd. creates a website with a dark pattern in it, negatively affecting its customer base of 100 people, that’s one thing. If a large corporation (let us not point any fingers…) does so, affecting millions of customers, that is another matter entirely. The sliding scale stretching between these two extremes would presumably be reflected in the scale of the legal repercussions — as, in fact, is currently the case with the US Section 508 for Web accessibility.
Many shades of dark
Another issue would be determining the line between dark and dark-ish, in an area which is, essentially, many shades of dark. This line could perhaps be decided using stats and analytics: if, say, over a certain percentage of the users fall victim to the pattern, it is dark, and therefore illegal; but otherwise, it is dark-ish and therefore legally acceptable.
“What if I get arrested for accidentally making a shit website?”
Further, there is the issue of intent. In my previous industry — construction — designers such as architects or engineers are not known to intentionally design buildings to cause harm (after all, that would be quite a bizarre thing to do — unless, perhaps, one was a notorious supervillain called The Architect in a Bond-style film). However, if they accidentally create a design which, when implemented, is proven to cause harm, they still face legal consequences. An entire sub-section of the UK law, called construction law, specialises in exactly this kind of thing.
In digital design, the same principle as above must apply. However, if a designer is a one-person band with no formal training, unaware of the current law and therefore accidentally creating a dark pattern, surely, they are not in the same league as a group of experienced designers from a large company who purposefully set out to use dark patterns for the company’s own monetary gain?
A spectrum of legal repercussions
And then, there is the issue of the spectrum of the legal repercussions. For large companies who make big profit from dark patterns, the fines or other punishment must be severe enough to deter them; otherwise, they will just choose to absorb the cost and carry on. For small companies, perhaps, a small fine or a reprimand may be sufficient.
Are you ready?
Whatever happens with this California law, I, for one, am on the edge of my seat! If it works in practice, this law could perhaps transform the digital design landscape around the world. I certainly hope it does!
