Scrutiny Over Dark Patterns Presents Further Challenges in Online Contracting

The Electronic Signatures in Global and National Commerce (ESIGN) Act and its state analogue, the Uniform Electronic Transactions Act (UETA), have played a transformative role advancing e-commerce in the United States for more than two decades. Provisions of the ESIGN Act contain safeguards designed to assure that consumers understand that they are agreeing to receive required disclosures electronically and that they have the ability to access such disclosures.

These assurances continue to be a concern for consumer advocates and regulators, particularly with regard to “dark patterns,” a loosely defined term that generally describes engineering online or mobile presentations to imperceptibly shape the visitors’ experience and guide them to make often unconscious decisions. Sensitivity to how dark patterns can harm consumers is increasing and the FTC, the Consumer Financial Protection Bureau (CFPB), and other regulators have already intensified their focus on this issue.