Dark patterns are a UX problem, but now courts are treating them like a legal one.
Want the full breakdown? Watch this week’s episode of The Daily Carnage Show to hear Shannon Sankey unpack Meta’s legal troubles, deceptive design, and what marketers should be thinking about when they design digital experiences.
Now, some of that attention is shifting toward something a little closer to home for marketers and product teams: how these platforms were designed in the first place.
Meta has faced allegations that Facebook and Instagram were designed to encourage excessive use among young people, failed to adequately protect children from harmful interactions, and misled the public about the safety of its products. Meta has denied wrongdoing. But the bigger question sitting underneath all of this is pretty interesting: Can the way you design a digital product actually become a legal problem?
What Is Deceptive Design?
Deceptive design, sometimes called dark patterns, is basically what happens when an interface or product experience pushes users toward decisions they might not otherwise make.
Think about automatically enrolling someone in marketing emails. A subscription that’s incredibly easy to start but weirdly difficult to cancel. A privacy setting buried three screens deep. Or an ad that looks suspiciously like editorial content.
The Federal Trade Commission’s report on dark patterns describes these kinds of practices as ways companies can obscure, subvert, or impair consumer choice. And that’s an important distinction because deception doesn’t always mean someone literally lied to you.
Sometimes, it’s about how the decision is structured.
Companies control a lot of the digital decision-making environment. Writers and designers decide what you see, what’s preselected, how information is presented, how much effort each option takes, and what happens after you make a choice.
All of those decisions influence behavior.
Defaults Are a Bigger Deal Than They Look
One of the easiest ways to see this in practice is through defaults.
A default is simply the option that’s already selected unless you change it. And defaults are useful! They make products easier to use because users don’t have to make a decision about every little thing.
The problem is that people also tend to leave defaults alone.
Notifications are on by default, so you leave them on. An account is public by default, so you leave it public. A subscription automatically renews, and you don’t think about it until the charge shows up on your card.
This matters even more when the default involves something consequential, like privacy.
You might technically be able to change a privacy setting, but that doesn’t necessarily mean you were given a meaningful choice. If the public option is the default and the private option is buried somewhere difficult to find, the design is doing some steering for you.
The FTC has specifically highlighted practices that trick consumers into sharing their data or make privacy choices harder to understand as examples of dark patterns. FTC — Report on sophisticated dark patterns
And then there’s engagement.
A personalized feed can continuously give you another thing to look at, another video to watch, another post to interact with. The user is the one who has to actively decide to stop.
That doesn’t automatically make the design deceptive. But it does raise a pretty important question:
Who is that default serving?
When Engagement Becomes the Goal
This gets especially interesting when engagement itself becomes the objective.
Digital products have plenty of metrics for this. Time spent. Sessions. Clicks. Videos watched. Interactions. Retention. ROI.
And there’s nothing inherently wrong with any of that. If people are getting value from a product, engagement can be a useful signal.
But there’s a difference between designing something people find useful and designing something that is primarily trying to keep them there.
Infinite scroll, autoplay, push notifications, and recommendation systems can all make it easier to keep going because they remove natural stopping points.
That’s part of what makes the Meta cases so interesting. The question isn’t simply whether a feature increases engagement. It’s whether companies can be responsible when design choices allegedly contribute to harmful patterns of use, particularly among young people. Reuters — Meta settlement and allegations involving children
And those two things aren’t automatically the same.
A feature that encourages engagement isn’t necessarily harmful. The harder question is whether a company deliberately designed the experience to make continued use difficult to resist while knowing about the consequences.
That’s a much different conversation.
Friction Isn’t Always Bad
Another piece of this is friction.
UX has spent years telling us to remove friction. Make checkout easier. Reduce the number of form fields. Make sign-up faster. Don’t make people work harder than they have to.
And generally, yes. Good UX should not make people suffer unnecessarily.
But friction isn’t always bad.
A confirmation before a large purchase can prevent a mistake. A warning before deleting something can save someone from accidentally losing it. An extra step before changing an important privacy setting can give someone a second to think.
So maybe the better question isn’t “Is there friction?”
It’s “Who benefits from the friction?”
If buying something is incredibly easy but canceling it is a nightmare, that’s worth paying attention to. If accepting a privacy setting takes one click but changing it takes six, same thing.
When the actions that benefit the company are easy and the actions that benefit the user are difficult, you might have a problem.
Honestly, that sounds like life UX under capitalism.
Information Can Technically Be There and Still Be Hidden
There’s another version of this that marketers deal with all the time: information that technically exists but isn’t presented in a way that helps people understand it.
Take a free trial. Maybe the company clearly states that the trial becomes a paid subscription after seven days. If that information is buried somewhere while “START YOUR FREE TRIAL” is sitting in giant letters at the top of the page, the information exists. But did the user really understand what they were signing up for?
The FTC has specifically identified practices like burying key terms, fees, and conditions as dark patterns. FTC — Dark patterns designed to “trick and trap” consumers
Privacy policies can have the same problem. All of the information might technically be there. That doesn’t mean an average person can easily understand it.
And this is where marketing decisions start becoming more consequential than they might seem.
What goes in the headline? What goes in the CTA? What gets a footnote? What gets pushed down to the terms page?
Those aren’t just copy decisions.
They affect what people understand when they make a decision.
Where Does Persuasion Become Manipulation?
This is probably the part marketers need to think about most.
Because, obviously, marketing is supposed to persuade people.
We use social proof. Urgency. Personalization. Incentives. Discounts. Psychology. Calls to action.
None of those things is inherently deceptive.
The gut check is whether the design is helping someone make a decision they actually want to make, or whether it’s mainly helping the company get the decision it wants.
“Sale ends tonight” is perfectly reasonable if the sale really ends tonight.
A countdown that resets every time you visit the page? That’s a little different.
The FTC’s research specifically identifies fake countdown timers, false limited-time messages, and other manufactured urgency as examples of dark patterns. FTC — Bringing Dark Patterns to Light
And that gets us to a pretty simple principle: persuasion can influence a decision, but it shouldn’t depend on withholding or distorting information that’s important to that decision.
Kids Make Everything More Complicated
Now add children to the equation.
A design that might be perfectly reasonable for an informed adult can be very different when the user is a child. Kids have less experience recognizing advertising, less understanding of privacy and subscription terms, and less ability to think through the long-term consequences of certain decisions.
That’s one reason the legal conversation around children’s use of technology is getting more complicated.
And it matters for marketers because we’re not always designing for a hypothetical, fully informed adult sitting at a desk with unlimited patience and a law degree.
Sometimes we’re designing for a 13-year-old with a phone.
That’s a very different user.
And as governments increasingly look at how social platforms are designed for younger users, the question of whether certain engagement mechanics are appropriate for children is becoming more than a UX debate. Reuters — California’s new restrictions on social media for children
What Should Marketers Actually Do?
You probably don’t need to panic and call your lawyer every time you add a CTA.
But there are some pretty practical questions worth asking.
- For forms: are optional marketing permissions preselected?
- For landing pages: are important limitations or conditions buried below the CTA?
- For subscriptions: can people cancel as easily as they signed up?
- For promotions: is the scarcity or urgency actually real?
- For personalization: is it making the experience more useful for the customer, or just making it easier to drive more activity?
And when you’re looking at analytics, are you measuring something that represents customer value or simply rewarding more time, more clicks, and more engagement?
The point isn’t to stop optimizing.
It’s to think about what you’re optimizing for.
Before you launch something, ask a few basic questions:
What decision are we asking the user to make?
What information do they need to make that decision?
Is that information available at the right moment?
Does this experience create value for the user?
Those questions won’t solve every legal or ethical problem. But they can help you catch some pretty questionable design choices before they make it into the wild.
UX Is Becoming a Legal Question
And this is where the Meta situation gets bigger than Meta.
For a long time, tech companies could argue that they built the platform and users were responsible for how they used it.
But what happens when the company also designs the recommendation system? Controls the notifications? Sets the defaults? Builds the mechanics that encourage people to keep coming back?
At what point does the design of the product become part of the responsibility for what happens next?
There isn’t one simple answer to that yet. But the legal landscape is clearly paying more attention to the design decisions behind digital products.
And honestly, that’s good news for consumers.
For marketers, it just means deceptive design is something we need to understand.
The basic principles aren’t that complicated: make important information clear. Don’t hide consequential terms. Think carefully about your defaults. Don’t make one choice dramatically easier than the other when that difference benefits the company. Make cancellation reasonable. Don’t manufacture scarcity. Give people meaningful control over their data. And when children are involved, be even more careful.
The goal isn’t to eliminate persuasion from marketing. That would be a pretty strange industry. The goal is to make sure persuasion doesn’t come at the cost of an informed choice.
Because dark patterns used to sound like a UX problem.
Increasingly, they’re starting to look like a legal one, too.
