Can consumers sue for dark-pattern based subscriptions?

Dark patterns refer to manipulative user interface (UI) designs that trick or coerce users into making decisions they might not have otherwise made, such as subscribing to services or signing up for recurring payments. This is a significant issue in the digital world, where consumers often feel trapped into subscriptions due to these deceptive practices. While these tactics are widely criticized, the question arises: can consumers take legal action against companies using dark patterns, and are there sufficient legal protections in place to address these practices?

Understanding Dark Patterns in Subscriptions

Dark patterns in subscription models are deceptive designs or actions that intentionally confuse, mislead, or pressure consumers into subscribing to a service or product, often with recurring fees. Examples include:

• Misleading Free Trial Offers: Offering a free trial that automatically converts into a paid subscription without clear notice or easy cancellation procedures.
• Hidden Unsubscribe Options: Making it difficult for users to unsubscribe by burying the cancellation button deep within account settings or requiring users to make multiple requests.
• Pre-Checked Boxes: Automatically enrolling users in a subscription or additional services by default, making it easy for users to miss them.
• False Urgency: Creating a sense of urgency (e.g., Only 3 left at this price) to pressure users into purchasing or subscribing impulsively.

These deceptive practices often exploit user behavior, leading to unwanted subscriptions or purchases, which consumers then struggle to cancel or dispute.

Can Consumers Sue for Dark-Pattern Based Subscriptions?

1. Legal Grounds for Suing

In many jurisdictions, consumers can take legal action against companies that use dark patterns in subscription models. The basis for such legal action typically falls under the following:

• Deceptive Trade Practices: Many countries have laws that protect consumers from unfair, misleading, or deceptive business practices. These can include tactics like false advertising, hidden fees, or deceptive subscription models. For example, in the U.S., consumers can file lawsuits under state-level deceptive trade practice laws or under the Federal Trade Commission (FTC) regulations.
• Breach of Contract: In cases where a subscription service uses dark patterns to enroll a user without proper consent or with unclear terms, consumers may argue that there was a breach of the digital contract. If the terms and conditions were not adequately disclosed or were misleading, it may constitute a violation of contract law.
• Consumer Protection Laws: Legal frameworks like the Consumer Protection from Unfair Trading Regulations (UK) or Unfair Commercial Practices Directive (EU) prohibit businesses from engaging in practices that mislead consumers. This includes practices that trap users into unwanted subscriptions through deceptive design.

2. Federal and International Laws that Protect Consumers

Several laws and regulatory bodies exist to combat dark-pattern practices:

• The Federal Trade Commission (FTC): The FTC in the United States enforces regulations against unfair or deceptive practices. The FTC Act prohibits businesses from using misleading or fraudulent tactics, including dark patterns. While the FTC has not directly targeted dark patterns in all cases, its broad mandate to protect consumer rights can apply in instances where deceptive subscription practices are involved.
• General Data Protection Regulation (GDPR): In the European Union, the GDPR requires that companies obtain explicit consent for data collection and subscriptions, and users have the right to easily withdraw consent. Under GDPR, if a company uses dark patterns to trick a user into subscribing to a service or data collection, it can be a violation of these rights. This can lead to fines and even lawsuits by the affected consumers.
• California Consumer Privacy Act (CCPA): Similar to GDPR, the CCPA provides California residents with the right to opt-out of data collection or subscriptions that they did not consent to. It allows consumers to sue if businesses fail to comply with privacy rights, including issues related to deceptive practices in subscription models.
• The Consumer Contracts Regulations (UK): In the UK, these regulations provide protections against unfair practices in subscription services, including dark patterns. The regulations require that businesses clearly inform consumers about the terms of a subscription, cancellation rights, and any recurring payments.

3. Class Action Lawsuits

In many cases, consumers who feel they have been misled by dark patterns may file a class action lawsuit, especially if they are part of a large group of individuals who were similarly deceived. In the U.S., companies that use dark patterns in their subscription models may be targeted in class action lawsuits, which seek compensation for all affected consumers. Class action lawsuits can be particularly effective in holding large companies accountable for widespread deceptive practices.

4. Regulatory Enforcement and Fines

Regulatory bodies can also impose fines or take action against companies that use dark patterns to trap consumers into unwanted subscriptions. For instance, the European Commission has penalized companies for non-compliance with consumer protection laws, and similar enforcement actions are possible in other regions.

Challenges for Consumers in Suing Over Dark Patterns

1. Proving Deception

One of the challenges in suing companies for dark patterns is proving that the subscription process was intentionally deceptive. Since many companies design these patterns to be subtle, it can be difficult to demonstrate that they were manipulative in a way that violated the consumer's rights. Consumers may also face difficulty proving they were directly harmed by the practice.

2. Terms and Conditions Agreements

Consumers often agree to terms and conditions without fully reading them. Many subscription services bury their cancellation policies or auto-renewal terms in lengthy contracts. This can weaken a consumer’s case, as companies argue that users gave consent by agreeing to the terms—even if they didn’t fully understand them. However, recent legal trends are shifting towards requiring more transparency and clearer consent mechanisms.

3. Difficulty in Enforcement

Even if a consumer is successful in a lawsuit, the process of enforcing a judgment can be lengthy and expensive. Moreover, some companies may operate in multiple jurisdictions, complicating the legal process for consumers trying to hold them accountable.

4. Financial Barriers

Suing over dark patterns often requires financial resources, particularly if the case involves complex legal questions or requires hiring experts to demonstrate deceptive practices. Class action lawsuits can mitigate this problem by spreading the costs among a large group of plaintiffs, but individual consumers may still find the financial barriers daunting.

What Can Consumers Do?

1. Report Dark Patterns to Regulatory Bodies

Consumers who feel they’ve been deceived by dark patterns should first report the issue to regulatory bodies such as the FTC (U.S.), the European Commission, or local consumer protection authorities. These bodies can investigate the complaint and, in some cases, initiate legal actions or impose fines.

2. Review Subscription Terms Carefully

Before subscribing to any service, always read the terms and conditions. Pay particular attention to any auto-renewal clauses, cancellation policies, and any hidden fees. Opt for services that provide clear and transparent terms without using manipulative tactics.

3. Opt Out of Recurring Subscriptions

If you realize you've been signed up for a subscription without your full consent, act quickly to cancel it. Many services offer an online cancellation process, but if the company makes it difficult, escalate the issue with consumer protection authorities.

4. Use Consumer Rights under GDPR/CCPA

If you're in the EU or California, use your legal right to withdraw consent for data collection and subscription services. Under the GDPR and CCPA, you have the right to demand the cessation of data processing and to cancel subscriptions at any time.

Example

Suppose a consumer signs up for a free trial of an online streaming service. The terms and conditions include automatic enrollment in a monthly subscription after the trial ends, but the cancellation instructions are buried within several pages of small print. The user forgets to cancel and is charged for the subscription.

Steps the consumer should take:

• Immediately contact customer support to cancel the subscription and request a refund for any charges made.
• If the company is unresponsive, file a complaint with consumer protection authorities (e.g., the FTC or GDPR enforcement bodies).
• If the issue affects a large number of consumers, consider joining or initiating a class action lawsuit to seek compensation.
• Review and report the misleading practices to regulatory authorities, providing evidence of the dark patterns (e.g., screenshots of the confusing terms).