The Mystery of Dark Patterns: The Publisher’s CMP Nightmare

Navigating the ins and outs of the ad tech industry can sometimes feel like hiking a treacherous mountain. There are surprising crevices to maneuver, unforeseen labyrinths and dead ends, and the endless fear that all of your hard work could topple in one fell swoop. 

The ad tech ecosystem, especially over the last couple of years, has been surprised by privacy regulations, increased ad fraud, a decrease in ad spending and many other setbacks. Industry experts have been working diligently to create solutions for the new ecosystem, but of course, there is more work to be done on all fronts. 

On September 15, The Federal Trade Commission released a report highlighting how companies are using a deceptive design practice called dark patterns. 

The practice is becoming progressively sophisticated and it aims to trick consumers into buying products or unwillingly giving up their data. There are several categories of dark patterns, but the FTC is actively searching for ways to prevent them. 

Dark patterns are nothing new. Even direct mail and brick-and-mortar retailers have used tactics like “pre-checked boxes, hard-to-find-and read disclosures, and confusing cancellation policies” to manipulate customers for their money and data. Now with the growth of e-commerce, dark patterns have simply evolved to trick customers online. 

Samuel Levine, Director of the FTC’s Bureau of Consumer Protection, released a statement saying, “Our report shows how more and more companies are using digital dark patterns to trick people into buying products and giving away their personal information. This report—and our cases—send a clear message that these traps will not be tolerated.”

Types of Dark Patterns Unveiled

The FTC report, entitled “Bringing Dark Patterns to Light,” asserts that dark patterns are found in a variety of contexts. These include mediums such as ecommerce, cookie consent banners, children’s apps, and subscription sales. Yet, they specifically highlight the four most common dark pattern traps. 

Misleading Consumers and Disguising Ads. These advertisements are designed to appear as independent editorial content, comparison shopping sites that rank companies based on compensation, and timers designed to trick consumers into believing there is a limited time to purchase a product or service. 

  • In this instance, the FTC used a case where they took action against a work from home scheme. Allegedly, the company sent unsolicited emails to consumers that falsely claimed they were coming from CNN or Fox News. The email sent consumers to fake news stories that eventually took them to sales websites that advertised the operators work from home scheme. 

Making it Difficult to Cancel Subscriptions or Charges. This pattern entails tricking consumers into paying for goods or services without their permission. The usual tactic involves subscription sellers creating recurring payments for products and services that consumers never wanted to purchase or only wanted for a one-time purchase. 

  • The FTC filed a case against ABCmouse that alleged the learning site made it extremely difficult to cancel free trials and subscriptions when they advertised an easy cancellation process. In fact, consumers had to jump through hurdles such as promotions that directed them away from the cancellation link. 

Burying Key Terms and Junk Fees. This specific pattern trap obscures material information from consumers such as hiding the key limitations of products under dense terminology in the terms of service. In addition, companies will only advertise part of the product’s total price to trick customers.

  • For example, the loan lender, LendingClub, allegedly used visuals that offered applicants a specific loan amount that included no hidden fees. Yet, they hid the fees behind tooltip buttons and stuffed them in between prominent text. 

Tricking Consumers into Sharing Data. This particular pattern offers consumers an option for privacy settings or sharing data. Instead, they steer them in a way that makes them give up their most personal data. 

  • The FTC alleged that smart TV company, Vizio, used default settings that allowed the company to collect and share consumer data with third parties. They only provided a brief notice to customers that was easily missed. 

CMP’s Manipulation of Publishers 

While data manipulation tactics have been used heavily on consumers, the same traps have been dished out to publishers as well. 

As early as 2018, the General Data Protection Regulation (GDPR) required publishers to gain consumer consent to acquire their data. Since then, publishers have used third-party contractors, Consent Management Providers (CMPs), to create consent pop-ups as a service. 

A study conducted by the PET symposium asserts that CMPs often use their services to manipulate publishers. 

The study claims that “by analyzing CMP services on an empty experimental website, we identified the manipulation of website publishers towards a subscription to the CMPs paid plans and then determined that default consent pop-ups often violate the law. 

We also show that configuration options may lead to non-compliance, while tracking scanners offered by CMPs manipulate publishers.” 

The study does not negate the importance of CMPs when they are used correctly. It simply highlights that CMPs often use their privileged position as an advantage against publishers to increase their revenue. 

For example, research was conducted in 2019, only a year after the development of the GDPR. Five popular CMPs were studied according to UK data provided by Adzerk. It found that almost 90% of consent pop-ups created by those CMPs did not meet the legal requirements and noted the general option of a “refuse” button for full consent. 

Furthermore, CMPs implement “legally problematic dark patterns in the generation process of their consent pop-ups, to influence the publisher in their own interest.” These tactics are used in every step of the CMPs registration process. 

Secret Revealed: What are the Solutions to Dark Patterns? 

Research shows that dark patterns are a parasite that plague both consumers and publishers. 

Many companies use dark patterns because they believe it is an easy way to increase traffic and conversion, but at the end of the day, it is just a hindrance to the user experience. While there is still work to be done to remedy the issue as a whole, some industry experts have offered solutions to maneuver around them. 

The first suggestion is to consider the consumers needs and base ad and pop-up designs on those standards. Stringent design practices should be introduced for designers. It is also important to understand the ethics around designing ads and pop-ups that consider UX. 

According to Dheeraj Khindri, Senior UX Analyst at Net Solutions, transparency is key. Many of the tactics for dark patterns include misleading consumers and publishers with confusing designs and texts. When designing layouts it is important to “ensure that the visitors on your site never feel lost or feel that the information is being hidden or manipulated. Users must be allowed to easily reverse any action like unsubscribing from a newsletter, and so on. All the elements on your website must be clear to the users and have user-friendly navigation.”