Dark patterns are designed to confuse and manipulate users to select the option preferred by website owners. Dark patterns are especially prevalent in cookie consent notices, which are notices that websites display to inquire users regarding their cookie preferences. Cookies are often used by websites to track and store user information for functional and marketing purposes. Dark patterns exploit various psychological biases, and the interaction among the biases will likely exacerbate their effects. This Article examines 100 cookie consent notices from the most popular e-commerce websites in the United States and offers a set of empirical data on the current landscape of dark patterns in cookie consent notices. Based on our results and analysis, most cookie consent notices we examined are likely considered unfair and deceptive under Section 5 of the FTC Act. Moreover, under the CPRA legal framework, most notices are also considered coercive and manipulative. Future regulators should focus on the design of online consent mechanisms to better protect consumer interest in privacy.
Danyang Li, The FTC and the CPRA’s Regulation of Dark Patterns in Cookie Consent Notices, 1 U. Chi. Bus. L. Rev. 561 (2022).
Available at: https://businesslawreview.uchicago.edu/2022/10/31/the-ftc-and-the-cpras-regulation-of-dark-patterns-in-cookie-consent-notices/