FTC, DOJ take aim at dark patterns with Adobe lawsuit
The FTC and DOJ's lawsuit against Adobe targets dark patterns by claiming that Adobe's allegedly difficult cancellation process traps consumers in unwanted subscriptions.
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Federal enforcement agencies' lawsuit against Adobe sends a message to businesses that the U.S. government is cracking down on manipulative tactics, often called dark patterns, used to get consumers to buy products and services and then make it difficult for them to opt out of those services once purchased.
The Department of Justice and Federal Trade Commission sued Adobe and two Adobe executives in June for imposing what the FTC and DOJ described in the complaint as "hidden early termination fees" on online subscribers and a complex cancellation process that deterred consumers from canceling subscriptions.
Adobe is far from the only company allegedly engaging in such tactics, but the government is making an example of the high-profile company through the lawsuit, according to Forrester Research analyst David Truog.
"This is an industry-wide malpractice, and I hope the lawsuit spooks other companies into abandoning this kind of coercive and deceptive design," Truog said.
Samuel Levine, director of the FTC's Bureau of Consumer Protection, stated in a news release that Adobe's hefty termination fees and cancellation hurdles trapped consumers in yearlong subscriptions.
"Americans are tired of companies hiding the ball during subscription signup and then putting up roadblocks when they try to cancel," he said. "The FTC will continue working to protect Americans from these illegal business practices."
Adobe has denied the FTC's allegations of wrongdoing.
"We are transparent with the terms and conditions of our subscription agreements and have a simple cancellation process," said Dana Rao, Adobe's general counsel and chief trust officer, in a statement. "We will refute the FTC's claims in court."
Federal, state governments crack down on dark patterns
The FTC released a report on Wednesday demonstrating a rise in companies' use of dark patterns. These tactics can include making subscription changes or cancellations difficult, tricking consumers into giving up privacy and sharing data, and disguising company ads on websites to resemble outside content. Nearly 76% of the 642 websites and mobile apps studied used at least one possible dark pattern, while 67% used multiple, according to the report.
Truog said companies will let users easily sign up for subscriptions through a well-designed user experience, but then make cancellations difficult through methods such as having consumers call during business hours. He said companies make it "much more onerous than they really need to."
This is an industry-wide malpractice, and I hope the lawsuit spooks other companies into abandoning this kind of coercive and deceptive design.
David TruogAnalyst, Forrester Research
"It's not unique to Adobe -- it's not even unique to software," Truog said. "It's true of magazines, gym memberships, subscriptions to online publishers and so on."
Meanwhile, state privacy enforcers are also keying into the business practice. The Colorado Privacy Act describes dark patterns as a "user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice." Elsewhere, California Consumer Privacy Act enforcers are investigating companies using dark patterns to affect consumer choice.
Truog said other deceptive and coercive practices include creating psychological unease by making statements to sell products such as "low inventory, only three remaining."
"Researchers have actually inspected the code on those webpages and found that they're not connecting to any inventory systems whatsoever," he said. "They're just generating a random number and making it go down by one every few minutes to create fear that stock is low."
While the most significant effects of dark patterns affect consumers, they could trickle into enterprise software contracting, particularly on projects without a large enough price tag to draw intense scrutiny, according to Forrester analyst Liz Herbert. However, the effect is likely minor, as enterprise software purchases will go through a more stringent review process that identifies clauses like early termination fees.
"In some ways, it could raise general awareness for termination or commitments to software," she said.
Adobe lawsuit a wake-up call
Truog said he hopes that by singling out Adobe, the FTC and DOJ's lawsuit spurs other companies to "abandon those coercive tactics." Although coercive tactics might boost short-term revenue for companies, they damage the brand and user experience, and don't pay off in the long term, he added.
Enterprise businesses can conduct usability studies about the cancellation process to better understand and improve the experience, Truog said. The Adobe lawsuit will likely prompt companies to address those issues, especially those with deliberately difficult cancellation processes.
"A lot of them are going to see this happening to Adobe and are just going to know right away [to say], 'Let's go fix that, let's de-complexify it,'" Truog said.
Makenzie Holland is a senior news writer covering big tech and federal regulation. Prior to joining TechTarget Editorial, she was a general assignment reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.
