Questions about what constitutes unethical influence tactics and what are legitimate advertising or retailing practices are impossible to answer conclusively; the answer often depends on the context. Today, these questions have taken on new meaning, and a new context, in relation to online retailing that leverages technology and insights into consumer behavior to nudge online shoppers in particular directions.
Referring to these tactics as dark patterns, researchers have determined that many retail sites engage in misleading tactics. For example, a choice to opt out of further marketing communications on a website might be presented in grey font, rather than black, making it appear as if that option cannot be clicked on or chosen. Other opt-out choice elements use confusing wording and double speak, making it difficult for site visitors to understand what they need to do—click or not?—to avoid receiving push messages. Then once they are signed up, many companies make it difficult to get off the list, such as requiring consumers to call or write in to stop the messages, rather than allowing them to click somewhere else on the site.
Beyond these marketing communication efforts, some dark patterns encourage specific purchase behaviors. On ThreadUp, an algorithm traces people’s shopping behavior, then issues (false) prompts to get them to buy, such as stating that “Alexandra from Anaheim just saved $222 on her order.” This prompt exploits the common human tendency—fear of missing out—to grab an opportunity if it appears likely to disappear soon. Retailers have long known of and used this habit. By offering limited selections for example, retailers can encourage shoppers to buy immediately rather than wait and risk missing out on the purchase opportunity. Those sorts of tactics are perfectly legal, but in the ThreadUp example, researchers have determined that the prompts do not refer to any actual customer. There is no Alexandra from Anaheim, and this fictional entity has not saved anything. Instead, the false message is purely designed to get the shopper who sees it to make the purchase right away.
The research study conducted to identify these dark patterns is the first of its kind, and it focused solely on retail sites, with stringent criteria. For example, the study only analyzed text, not any other forms of communication (e.g., videos, images, links), and it focused only on dark patterns that clearly sought to influence purchases. It excluded other potential types of dark patterns, such as content added to social media sites or data sharing uses and abuses. Thus according to the lead author of the study, dark patterns are likely much more prevalent than the study reports—and that study indicates that about 12 percent of retail sites exhibit some uses of some dark patterns in some form.
Federal lawmakers are considering legislation to limit the use of these patterns, but the same definitional problem arises. When do nudges to get customers to buy represent legal forms of advertising and marketing to help shoppers find what they need—and when are they unethical influence methods that keep consumers from getting what they really want and need?

Discussion Question:

1. In online retailing settings, what are “dark patterns”?
2. Provide examples of dark patterns.
3. Which of these examples, if any, do you believe are the most deceptive? Defend your answer.

Source: Jennifer Valentino-DeVries, The New York Times, June 24, 2019