Privacy & Information Security Law Blog

On September 4, 2024, the California Privacy Protection Agency (CPPA) issued an Enforcement Advisory on Avoiding Dark Patterns: Clear and Understandable Language, Symmetry in Choice (the “Enforcement Advisory”). The Enforcement Advisory reminds businesses to review their user interfaces (such as on websites and in mobile applications) to ensure that choices offered to consumers, such as opt-out functionalities, are presented in a symmetrical fashion using clear, easily understandable language.  According to the CPPA’s press release announcing the Enforcement Advisory, “The California Consumer Privacy Act (CCPA) uses the term ‘dark patterns’ to refer generally to user interfaces that subvert or impair consumers’ autonomy, decision making, or choice when asserting their privacy rights or consenting. For example, when businesses provide choices to consumers, such as the option to opt-out of the sale or sharing of their personal information, businesses must present these choices in a clear and balanced way. If the choices are unclear, they might be considered dark patterns.”

The Enforcement Advisory also makes clear the CPPA’s position that a business may unintentionally create a dark pattern if the effect of the interface is to subvert or impair the consumers’ choice or decision making when asserting their privacy rights or providing consent – in other words, “dark patterns are about effect, not intent.” The Enforcement Advisory does not identify specific enforcement activity taken by the CPPA, but rather presents observations from the CPPA in the course of performing its enforcement duties under California law.