In response to concerns from both consumers and the industry, the US Federal Trade Commission (FTC) invited public comment on whether it should amend the current Rule Concerning the Use of Prenotification Negative Option Plans to address deceptive or unfair negative option practices.
Negative option marketing is a practice in which a seller treats a consumer’s silence or failure to take action as consent to be charged for goods or services. This technique is often used in subscription services, where users may be guided toward accepting recurring charges through default selections or obscure disclosures. These design practices, also known as “dark patterns,” successfully manipulate and influence user behavior on a systematic level and are often employed in all aspects of digital markets, not just with subscriptions.
As a browser developer, Mozilla is well-acquainted with the negative impacts of manipulative design. The web browser market provides a documented case study illustrating how operating systems deploy deceptive design practices to weaponize friction and status-quo bias to influence consumer behavior. As such, Mozilla was eager to provide feedback and encourage the Commission to examine the breadth of deceptive design practices that undermine choice.
Dark patterns are a byproduct of power asymmetry between companies and consumers. If we don’t protect meaningful choice and effective competition now, we risk giving even more control to the biggest players — and losing what makes the web open and innovative in the first place.
The FTC has a critical opportunity, both in this rulemaking and more broadly, to modernize consumer protection for the realities of digital markets. We encourage the FTC to:
- Make clear that practices which manipulate, coerce, or mislead users through interface design, defaults, or friction fall within the scope of unfair or deceptive acts or practices.
- Investigate remedies for digital markets to operate with meaningful consumer choice.
- Prioritize targeted enforcement against well-documented uses of deceptive design, such as tactics prevalent on the Windows operating system, designed to push users to the Edge browser.
We welcome the opportunity to share our relevant experiences in the browser space and look forward to continuing the conversation.
Read our full comments to the FTC for more details on our recommendations.