Dark Pattern Lawsuits and What We Can All Learn From Them

Were you aware that Amazon and Google were recently sued for using dark patterns on their websites? Let’s review key takeaways of these and other key lawsuits—not just why dark patterns are wrong, but ways you can design high-converting digital products without deceiving your users.

Dark patterns are bad for business. It doesn’t matter how long the grift works, eventually users will catch on.

At the very least, you’ll be dealing with an influx of user complaints, negative online reviews, and refunds to process. At the worst, you’re looking at bad press coverage and a hefty lawsuit.

Let’s take a look at how the worst-case scenario has panned out for some of the world’s top companies. Then we’ll review some ways to keep conversions high without having to go down the dark, deceitful, and costly path of dark patterns.

What Is a Dark Pattern?

Dark patterns are user interfaces that trick users into doing something they didn’t intend to do. Some also make it difficult to near-impossible for users to reverse that unwanted action. The goal of dark patterns is to get users to give up their money or data without their knowledge or consent.

Here are some examples of dark patterns in web design:

• Auto-checked boxes that sign the user up for something—like auto-renewal—in ecommerce or subscription forms
• Ads and sponsored posts disguised as organic content
• Cookie consent banners that offer no “Accept” buttons and are merely informational
• Making something—like a question during onboarding—seem mandatory because the “Skip” or “N/A” option isn’t easy to find
• Convoluted cancellation processes that require the user to repeatedly say, “I want to delete my account”
• Difficult-to-find policy disclosures or terms of service
• Shaming users who don’t select the opt-in button by making them choose one that says something like, “No, I enjoy being stupid,” or, “I hate saving money”
• Unsubscribe pages that don’t automatically unsubscribe the user and force them to unsubscribe from individual mailing lists or to choose an alternative frequency
• Price comparison tables that don’t show any prices

Looking through the dark pattern lawsuits below, I realized a lot of the companies said the same thing when asked for a response. “Our users love us!” and “We create user-first experiences!”

The truth is, if a company has to use deceitful UI design tactics, the user is the very last thing they thought about during the decision-making process. Unless, that is, you’re talking about the user’s money or data.

Recent and Very Expensive Dark Pattern Lawsuit Examples

The initial trickery might have netted these companies extra revenue and users initially. However, their customers eventually caught on and they paid a steep price for their shady design tactics.

Amazon

The Dark Pattern
The Federal Trade Commision (FTC) filed a complaint against Amazon in 2023. The primary argument made in the complaint is that Amazon auto-subscribed customers to Amazon Prime without their express consent during the checkout process.

Taking it a step further, the FTC has added three executives to this dark patterns lawsuit. This is because they have proof from Amazon employee communications that these executives knew of the deceptive practices:

“Via emails, meetings and other means, some Amazon employees told the executives now named in the amended document that some processes were unfair and encouraged changing them, per the complaint.”

Despite knowing that the signup process was flawed, nothing was done to fix the issue.

That’s not the only thing Amazon is in trouble for. The complaint includes these other deceptive design tactics:

• Users were forced to enroll in Prime before being able to complete a purchase.
• The Prime-specific terms and conditions were only revealed once during checkout and it was easy to miss because of the way the font was designed.
• Color and other repetitions actively drew users’ attention to the “free shipping” notice and discouraged them from looking at the cost of Prime.
• Users had a difficult time finding the option to decline enrollment.
• On the cancellation pages, distractions like animations were used to get users to focus on any other option besides canceling.
• Fear-inducing notes and icons were placed around the cancellation option.
• In order to get users to subscribe and stay subscribed, confirm-shaming was used in the wording.
• Amazon forced users to either call and cancel or to use the Iliad Flow. This online cancellation process forced them to navigate four pages, six clicks and 15 options.

In other words, Amazon really wanted more subscribers and designed the UI and UX so that users were discouraged from canceling.

A Better Way to Handle the Matter
If Amazon really was confident in the value of its subscription service, it wouldn’t have needed to engage in massive deception and fraud.

If you have designed a great digital product and experience, all you can do is hope that users will respond well to it. Using deception will get you short-term gains, but they won’t last.

Instead, be honest and transparent when designing your products.

Don’t bury the terms and conditions in the footer or hide it with an illegible font.

Don’t use misdirection to keep users from doing what they set out to do.

Use hierarchy to present the most important information to the user in the interface, even if that means highlighting the high cost of membership and related fees.

Also, create checkout and cancellation processes that are fast and easy to get through.

Age of Learning/ABCmouse

The Dark Pattern
ABCmouse was found guilty of illegal marketing and billing practices and was fined $10 million in 2020. On top of the penalty, ABCmouse had to repair its broken and deceptive marketing strategy as well as its communications with prospective customers.

This educational tool was guilty of some of the same practices that Amazon is now being charged with. For example, users weren’t told that subscriptions auto-renewed nor that free trials would as well.

Cancellation was also a difficult process to navigate, despite the company promising it would be easy when users initially enrolled. In reality, they found the process so long and confusing that many were unable to complete the cancellation.

For some users who managed to get through cancellation, they still received recurring charges afterwards. According to the company’s records, hundreds of thousands of users who initiated cancellation were still subscribed.

A Better Way to Handle the Matter
In addition to fixing the difficult cancellation process, the content on the website needs to be updated. Users should never sign up for something, only to realize what they actually committed to once the payments are taken out of their account.

Adding proper Terms and Conditions pages to the website is crucial. You should also have ones that explain the subscription and cancellation terms so that they’re clear as day.

Rather than leave these pages buried in the footer, they should appear at relevant points during the checkout process. You might want to go as far as to require users to give consent that they read through the terms pages.

Make sure this notice is easy to find—it should be placed right before any buttons that take them to the next step.

If there’s a checkbox, it shouldn’t automatically be checked. And an error should appear if the user tries to go to the next page without reviewing the notice or consenting to it.

Also, make sure the font for the notice is bold and the hyperlink to the individual terms is in a color that everyone can clearly read.

Publishers Clearing House

The Dark Pattern
The FTC settled a lawsuit against Publishers Clearing House (PCH) in 2023 for $18.5 million. The complaint accused PCH of misrepresentation and deceptive practices.

Specifically, the company used various dark patterns to not only increase sweepstakes subscriptions, but also product purchases. They did this by using visual interference and manipulative phrasing to insinuate that users had to make a purchase first before they could sign up for a sweepstakes (which was not the case).

Like the other dark pattern abusers on this list, the PCH didn’t stop with one bad practice. They also did the following:

• They used extra-small and too-light fonts for disclosure notices and links. They also placed them where no one would look.
• Although a purchase wasn’t required, the sweepstakes signup process was intentionally designed to be difficult to complete without an order.
• They added surprise shipping and handling fees late in the checkout process.
• They called their returns process “risk-free” despite charging customers a shipping fee for all returns.
• They also weren’t honest about their policy related to sharing user data with other parties.

PCH also got into trouble because of their email marketing practices. For starters, they used misleading subject lines to encourage more users to open them. They also sent emails that suggested to subscribers that if they didn’t take action right away they’d lose their chance to enter.

A Better Way to Handle the Matter
If your paid service or product really is good, users will eventually find their way to it. The point in offering a subscription or contest isn’t to trick users into paying for something they didn’t necessarily want. It’s to offer extra value and get prospects interested.

So, first things first, make sure your copywriters are being honest when they write promotional copy for contests or other free opportunities and offers. If a purchase isn’t required, the copy shouldn’t suggest otherwise.

In terms of design, the same suggestions as the ones for Amazon and ABCmouse apply.

Use the right size and color for fonts. And don’t hide important information and disclosures.

Don’t use the signup or checkout process to add upsell or cross-sell products either. Advertising related products or offers in the cart might be OK, but not at the moment when the customer is pulling out their credit card and ready to pay for what they settled on.

One last thing: Provide a clear breakdown of costs in the cart or beforehand. This will keep your checkout abandonment rates lower.

Google

The Dark Pattern
The Office of the Attorney General for the District of Columbia (OAG) brought suit against Google in 2022. The company agreed to settle for $9.5 million.

This case is a bit different as it has to do with location tracking. Various Google apps continued to track and record a user’s movements even when they had not given the app permission to do so.

In addition, some of these apps would regularly display notices asking users to enable location tracking. In some instances, the app would claim that it couldn’t work properly without location tracking, even when it was unrelated to the purpose or functionality of the app itself.

In other words, Google misled users with regards to how it protected their privacy. When given the choice, it didn’t matter how users preferred to be tracked. The company continued to record their movements regardless.

A Better Way to Handle the Matter
This dark pattern lawsuit is important to pay attention to if you design mobile apps or even websites that ask users to enable location tracking. I’d also include any websites or apps that ask permission to:

• Use cookies
• Access the microphone
• Access the camera
• Access the photo roll
• Send push notifications
• Access other apps on the device

Your privacy policy page should clearly detail what you need this access for and what you’ll do with the data.

Your apps should also be programmed to ask for permission only when it’s contextually relevant and to do so once. For instance, let’s say you’ve built an app like Snapchat. There’s no need to bombard the user during onboarding with requests to access their phone’s functionality. Instead, wait until they try to access the relevant features and then ensure that your app saves their preferences so it doesn’t ask them again.

Epic Games/Fortnite

The Dark Pattern
In 2022, Epic Games and Fortnite agreed to a $520 million settlement with the FTC. $275 million of that was a penalty for violating the Children’s Online Privacy Protection Rule (COPPA). The remaining $245 million was used to refund users because the company engaged in dark patterns.

Let’s unpack this bit by bit. With regards to COPPA, Fortnite did numerous things wrong. First, they collected personal information from kids younger than 13 and failed to get parental consent. They also automatically enabled voice and text chat for all users.

What’s more, they kept users’ (i.e., the parents) credit cards on file. So when kids eagerly bought V-bucks currency in the game, there was no confirmation step required, like asking for the security code on the back of the card or for their ZIP code.

In terms of the actual dark patterns, they led to users mistakenly buying virtual merchandise.

In some cases, this happened because two buttons were placed too close to one another in the UI. On a TV or computer, this wasn’t as big a deal. But for users tapping the screen with their fingers, it was.

In other cases, it was because buttons were designed counterintuitively. For example, PlayStation users found that the button symbols on the screen didn’t always align with the button symbols on their controller. So they might click the square button to preview items and unintentionally buy them instead.

In the end, the company had more than a million complaints related to unauthorized charges.

Unfortunately for those users, Fortnite had a “no refunds” policy. While they did have a refund request screen included in the app, it was almost impossible to find. Worse, when desperate users went to their credit card companies to dispute the charges, the owners of the video game locked the users’ accounts.

A Better Way to Handle the Matter
Although the COPPA violation isn’t a dark pattern, per se, it’s something to consider when you’re designing digital products that kids may interact with. This goes for apps and websites like Fortnite that have in-game upgrades as well as apps and websites that sell regular products.

If you know that kids are using your digital products, you should have a system for getting the parents’ consent to track their data first and foremost. You should also ask the user to verify their identity whenever they make a purchase. This might become tedious to adult users, so setting up the app with parental controls and restrictions is a good way to work around this.

Regarding the dark patterns, any UI you design should look uncluttered. This is especially pertinent on mobile devices where you might run into issues with conflicting buttons and actions sitting too closely to one another.

Also, the way you label buttons should be crystal-clear. If they don’t explicitly describe what action the user is about to take, then they need to be redone. This is why it’s best to skip the icons and use succinct and descriptive wording.

Wrapping up

Deception is never good for business. Those short-term gains in revenue, subscriptions and data won’t last once your users catch on. And if the deception is wide-spread enough and the customer complaints mount, the FTC will come after you. It might not be to the tune of the $500+ million that Fortnite had to pay out, but you can bet it won’t be a sum you or your employer will be happy to give away.

There are plenty of ways to keep conversions high in the digital products you build without having to resort to deception and manipulation. Good, clean design. Honest and transparent policies. Simplifying the signup and checkout processes. These good design practices will enable you to create a positive experience for your users while giving them every reason to convert and stick around.

The information provided on this blog does not, and is not intended to, constitute legal advice. Any reader who needs legal advice should contact their counsel to obtain advice with respect to any particular legal matter. No reader, user or browser of this content should act or refrain from acting on the basis of information herein without first seeking legal advice from counsel in their relevant jurisdiction.