Dark Patterns and Ethical Marketing Practices | Ethics Issue Alerts | Industry Insights | All MKC Content | ANA

Dark Patterns and Ethical Marketing Practices


Self-regulation and ethical marketing are at the core of building consumer trust and loyalty. This ethics update focuses on key consumer marketing issues to highlight the ethical standards of applicability and to assure best practices are communicated and followed.

By Senny Boone, Esq., SVP

Background: Dark patterns are defined as web design tricks some companies use to intentionally confuse and take advantage of consumers — i.e., pop-ups with tiny X's that make a window hard to close and subscriptions with hidden fees that a person cannot cancel without making a lengthy customer service call.

Dark patterns "place a particular burden on already marginalized groups, including lower-income populations and people of color," writes Thomas Germain in Consumer Reports. This organization has established a tip line for consumers to report on these practices and to also report this to state attorney generals. (See: Dark Patterns Tip Line)

Ethical Issues: Designs and functions that require a consumer to take added steps to prevent being charged for a product or service or donation they did not agree could be at a minimum annoying customer service and in fact an unethical practice. At its worst, it may take advantage of a consumer who is seeking to purchase the items quickly and is not adept at recognizing details designed to trick them into taking a step they did not agree to. This could be a pre-checked box that a consumer must uncheck to avoid a charge to their account, or hidden fees that are difficult to locate and appear on future bills.

ANA Ethical Guidelines Applicable (See more here)

According to the Marketing Principles, an ethical marketer:

Clearly, honestly, and accurately represents its products, services, and terms and conditions.



All offers should be clear, honest, and complete so that the consumer may know the exact nature of what is being offered, the price, the terms of payment (including all extra charges) and the commitment involved in the placing of an order. Before publication of an offer, marketers should be prepared to substantiate any claims or offers made. Advertisements or specific claims that are untrue, misleading, deceptive, or fraudulent should not be used.


Simple and consistent statements or representations of all the essential points of the offer should appear in the promotional material. The overall impression of an offer should not be contradicted by individual statements, representations, or disclaimers.


Representations which, by their size, placement, duration, or other characteristics are unlikely to be noticed or are difficult to understand should not be used if they are material to the offer.

Additional insights and guidance points:

California already bans the use of dark patterns to deceive consumers into giving away their personally identifiable data. It has updated its CCPA regulation to sharpen this area. The newly-approved regulation does not ban all uses of dark patterns, only those that have "the substantial effect of subverting or impairing a consumer's choice to opt-out" of schemes where their personal data is being sold. Examples of dark patterns:

  • Using confusing language like double-negatives (e.g., "Don't Not Sell My Personal Information")
  • Forcing users to "click through or listen to reasons why they should not submit a request to opt-out before confirming their request."
  • Requiring users to "search or scroll through the text of a privacy policy or similar document or webpage to locate the mechanism for submitting a request to opt-out."

In April, "Bringing Dark Patterns to Light: An FTC Workshop," explored the ways in which user interfaces can have the effect, intentionally or unintentionally, of obscuring, subverting, or impairing consumer autonomy, decision-making, or choice. For example, some sites sneak extra items into a consumer's online shopping cart or require users to navigate a maze of screens and confusing questions to avoid being charged for unwanted products or services.

The FTC workshop brought together together researchers, legal experts, consumer advocates, and industry professionals to examine what dark patterns are and how they affect consumers and the marketplace signaling increased concern by regulators over such practices.

Conclusion: To hide terms and conditions to trick a consumer into an action/agreement is unethical and a potentially deceptive marketing practice whether it is through a website, mobile app, or an offline application.

Companies should ensure consumers are provided with clear terms and conditions and should not engage in such potentially deceptive design tactics or difficult to follow consumer choice mechanisms for marketing preferences. If you see an example of this type of marketing practice, please contact us at ethics@ana.net to report it.


"Dark Patterns and Ethical Marketing Practices." Senny Boone, SVP of Nonprofit Federation at ANA, 2021.