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Best Practices for Ensuring Enforceable Online Notices and Avoiding Dark Patterns

ANA Law 1-Day Conference attendees: Scroll down for CLE materials

A panel of experts provided best practices for obtaining enforceable online notices, consent, and agreements in negative-option marketing and discussed new standards for dark patterns.

Key Takeaways

When it comes to electronic contracts and obtaining consumer consent, a key area of focus is "enforceability" or ensuring that contracts like customer terms of use are created in a way that makes them useable in a court of law. To do so, it is key to identify the areas in which your business may be at the highest risk.

Doe v. Roblox Corp

For a real-world example of the above, the panel cited the 2022 case Doe v. Roblox Corp. This case was the result of a period in which Roblox grew rapidly. Over a nine-month period in 2020, the brand grew 82 percent. Seventy percent of that new user base was under the age of 18, and many of those users were actually 13 and under. During this period of rapid growth, Roblox failed to review its risk profile and update its terms of use. As a result, a lawsuit was brought against the brand. In this case, the plaintiff, who was only 10 years old, and their representation alleged that Roblox was using deceptive business practices and doing so without obtaining appropriate parental consent from underage users.

In instances like these, a brand's first line of defense would typically be an ironclad terms of use agreement. However, because Roblox failed to update its terms, this defense was not an effective one. The fact that Roblox was obtaining consent directly from minors rather than their parents resulted in the brand paying out a $10 million settlement.

Communicating Terms Clearly

Along with regular risk assessments, especially during times of rapid growth, brands must also be dedicated to clearly outlining terms of use, especially when attempting to acquire consent through a quick-wrap box on the brand's homepage or elsewhere on the website. Some qualities to consider include:

  • Font size and color: Terms and a request for consent module must be written in clear and conspicuous language. Additionally, the color of the text compared to the background of the module must display a clear contrast, so that the language is easy to read.
  • Proximity: Requests for consent must be clear and above the fold. In fact, any request for consent shared at the bottom of a webpage is not enforceable in court. Additionally, buttons to provide consent should be clear and use language like "I accept" or "I agree."
  • Screen experience: Elements on a consent page that may distract the user or obscure the textual notice can negate a user's given consent.

Reviewing Dark Patterns

A dark pattern refers to a user interface that has been crafted to trick users into taking an action or making a purchase. For example, in a recent case, Publishers Clearing House (PCH) was successfully sued by the FTC for using dark patterns to mislead consumers about how to enter a sweepstakes drawing. The FTC alleged that PCH made consumers believe a purchase was necessary to win and that entries that were not accompanied by a purchase were incomplete, while also misrepresenting policies on selling users' personal data to third parties.

States and the federal government have begun to crack down on dark patterns, including the following examples:

  • Deceptive endorsements and testimonials: Such deceptions can relate to celebrity endorsements or customer testimonials. For example, a brand was recently fined for soliciting employees to post positive reviews about a product and not disclosing that relationship when sharing those reviews.
  • Design elements that induce false beliefs: Such elements can refer to a third-party shopping platform on which brands pay to have their products ranked higher in search results without a disclosure to the user.
  • Coerced action: Such efforts can refer to pyramid schemes, like an app that will pull contacts from a user's address book and email those individuals with a marketing message.
  • Intentional interference: Such interference can entail using contrasting visual elements designed to steer users in a certain direction. For example, when a user wants to cancel a subscription, the page may feature a big bright "keep my subscription" button contrasted with a very small "cancel my subscription" option.

CLE Materials


"Best Practices for Ensuring Enforceable Online Notices, Consents and Agreements, Negative Option Marketing, and Avoiding 'Dark Patterns.'" Katherine Spicer, partner at Squire Patton Boggs; Kyle Dull, senior associate at Squire Patton Boggs; Derek Walton, corporate counsel for privacy at Purple Mattress; Elizabeth Berthiaume, associate at Squire Patton Boggs. ANA Law 1-Day Conference, 7/19/23.

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