A lawsuit filed by the CFPB last week against a national credit reporting agency provides some insight into the types of website features and designs that regulators like the Consumer Financial Protection Bureau and Federal Trade Commission will target. As we covered previously, digital dark patterns—or website design, features, and interfaces used to allegedly deceive, steer, and manipulate users—are a priority for both rulemaking and enforcement actions by the FTC. Although the focus has been on website features that “trick or trap” consumers into subscriptions, the potential for broad and arbitrary application of this concept is worrisome. What is the line between a website that is acceptably optimized for conversion and one that is illegally steering users to make purchases?

In the highly detailed complaint, the CFPB alleged, among other things, that the net impression of various advertising messages, combined with the design of the webpage where users landed when clicking on the ads, obscured the nature of the offer (a month-to-month subscription of a credit-monitoring service and credit score), the status of a user’s enrollment in the service, and the purpose of collecting a user’s payment information.

More specifically, the complaint described how call-to-action buttons, email subject lines, font color and size, text placement, and website flow were employed to confuse consumers who were seeking information about or copies of their annual free credit report and steer them instead into unwittingly purchasing a subscription for credit monitoring.

Some takeaways to help you stay on the correct side of this not-so-easy-to-spot line:

  1. Call-to-action buttons: Call-to-action buttons must be labeled accurately (for example, if clicking it results in a purchase, it should not be labeled “learn more,” but rather it should be labeled “complete purchase” (or something similar). Although these buttons, by definition, are designed to stand out on the page, all material information about the nature of an offer should be displayed—conspicuously and unavoidably—above the call-to-action.
  2. Email subject lines: Various applications now make it easy to follow up with a consumer by email after she has taken (or not taken) an action on your website. Such “nudges” are fine (as long as they comply with your privacy policy) but watch out for subject lines crafted to look like personal emails or to otherwise lure the customer to open emails by including untrue or highly exaggerated information. Also, the CAN-SPAM Act already prohibits using deceptive email subject lines.
  3. Enrollment / Checkout flow: When asking customers to enter information, you need to make clear why it’s being collected, including if that purpose changes during the flow. If a customer puts something into her shopping cart, and then is asked to enter her shipping and billing information, it’s clear why that information is being collected. However, if your flow starts with requesting information for one purpose (to enter a user into a contest, verify a user’s identify, match the user with a product or service, etc.) then later seeks information for a new purpose, this must be made clear to the user before the new information is provided.
  4. Methods for canceling subscription-based products or services: Throwing roadblocks in customers’ way when they try to cancel a membership, subscription, or trial is a sure way to garner complaints and regulatory scrutiny. This includes digital roadblocks in the cancellation process, such as confusing verbiage on call-to-action buttons or requiring customers to navigate multiple screens and answer many questions.

Finally, while website features designed to enhance the user experience—and yes, increase conversions—typically are not deliberately deployed to “confuse” or “trick” customers, sometimes they miss the mark and do just that. The best way to minimize this risk is to invest in compliance:

  1. Prevention: The earlier your legal or compliance team is looped into product development or website design, the better. Product design or UX teams also should be armed with the basic ground rules.
  2. Detection: Pay attention to what your customers are saying. Complaints or other types of customer feedback are critical on-the-ground intelligence. If the FTC or CFPB investigates, they will treat the complaints (especially what they deem a high number) as evidence of deception regardless of intent.

For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.