What are the ‘dark patterns’ of the media industry?
What publishers could learn from a new ruling on consent buttons.
A song to read by: "Don't Be Cruel," by Billy Swan
What I’m reading: "No One Is Talking About This," by Patricia Lockwood
The moment you land on a new website, a box pops up with some variation of the same message, asking whether or not you consent to the website tracking and storing information about you and your visit.
Except, not really. Sometimes, the box simply says, “By continuing to use this site, you consent.” Other times, the pop-up grants you the choice between consenting or “managing your preferences,” a tedious-sounding task.
Occasionally, even if you choose to go down the winding rabbit hole in an attempt to decline, or “opt out” of sharing your personal information, you will find yourself hopping from site to site in what soon begins to feel like a deliberate attempt to discourage you from doing so.
The topper? According to a new ruling from Belgium’s data protection authority, even when you do manage to successfully opt out, sometimes these consent buttons disregard your choice and track you anyway. Seriously.
For these reasons and more, in a landmark case sending shockwaves through the digital ad industry, this tactic has been deemed illegal. The method that websites have used for the last two years to gather user consent fails to comply with the General Data Protection Regulation (GDPR), the Belgians said, and all the data collected using these consent boxes is unlawful and must be destroyed.
Think about that: Can you imagine how many billions of times people have landed on websites and either consented or opted out in the last two years? Now think about all the ways that data has been used, parsed, rehashed, targeted, sold and stored in the years since — all of it is now unlawful and must be destroyed.
While the digital ad industry begins the first steps in waging what will likely be a protracted, messy, impossible effort to untangle this clusterfuck of data violation, a larger lesson emerges from the muck. In addition to the clear law-breaking, i.e. using data when people denied them access to do so, lawmakers have also said that the consent boxes employed what analysts call “dark patterns.”
Dark patterns are, in a nutshell, manipulative design. Our tech overlords might prefer the term optimization. When a consent box offers you a clear option to consent and a convoluted path to opt out, that design encourages one result over the other.
For true parity, a consent box should offer both options clearly and use language designed for universal comprehension. When your grandma lands on a website, she should have a clear idea of what is being asked of her and what her options are. That is equitable design!
When it comes to dark patterns, as my theology teacher used to say, it is about the spirit of the law not the letter of the law. The Dutch privacy board ruled, rightly, that something so fundamental as data rights should not lie at the mercy of capitalist tendencies. Just because you can game someone into signing away their privacy does not mean you are allowed to.
The issue has surfaced with consent boxes, but all sorts of websites use dark patterns to encourage certain actions over others. There is a great piece by Nieman Lab, written by a professor of user experience design at the University of Central Lancashire, about it here.
But you know who also uses dark patterns? Publishers.
Below are five instances of dark pattern design that media companies should discontinue immediately. Illegal or not, they erode trust, and for an industry predicated on serving its readership, these dark patterns in publishing are an exercise in hypocrisy.
Click to subscribe, call to cancel
Perhaps the most infuriating of the bunch, publishers’ practice of requiring you to physically call a telecenter during working hours in order to unsubscribe is one of the most loathsome, nakedly antagonistic tactics still in employment today.
On the other hand, the act of subscribing could hardly be easier. If there is one pathway that publishers have polished down into a smooth pipeline, it is the route to subscription. Digital designers want to ensure that you have as few barriers as possible if you are in a mind to subscribe, so the deed can generally be done in three clicks or less.
But unsubscribing? First you’ll need to hop in the Delorean and head back thirty years, because you are going to have to call the newspaper and fight your way past an energetic salesperson whose sole purpose is to dissuade you from unsubscribing.
Why? Not because the technology to unsubscribe digitally does not exist. No, publishers do it just to make it hard. I hate to name names, but in this instance I will: My experiences with two separate Hearst newspapers, the Chicago Tribune and San Francisco Chronicle, were each so singularly bewildering that I will never subscribe to either newspaper ever again.
Nothing leaves so bad a taste in your mouth as having to jump through hoops to cancel a subscription, especially if you were only in that position in the first place because you were trying to support them.
However, there is some good news: the practice might finally be on its way out.
Once an email subscriber, always an email subscriber
I love newsletters, in part because they are so simple to opt out of. The cadence of the newsletter is too often? A click or two and it disappears. Canceled your subscription? Those emails can be gone in an instant.
Except not, because some publishers make it nearly impossible to stop receiving a newsletter once you have opted into it.
One in particular, The Washington Post, is a prime example. A while ago I subscribed to a newsletter, changed my mind and unsubscribed. But the emails kept coming. I tried all the reasonable solutions — unsubscribe, change settings on the website, even block sender — but the deluge continued.
Finally, I had to use a blunt instrument to solve a fine problem: I blocked The Washington Post. Soon, however, a problem arose: I wanted to subscribe to another newsletter from The Post. The dilemma forced me to decide between unblocking the sender and receiving a host of unwanted newsletters, or receiving none at all. I eventually chose the latter, and to my knowledge the problem still persists.
I have experienced this with other publishers, to be sure, but The Post stands out because I have come back to them so often, curious to try a different newsletter.
In this instance, the problem might simply be technical. But given the technical chops of The Post, I would be surprised if they were oblivious to this issue.
Shady data dealing
Several months ago, if you visited The Washington Post website, a pop-up offered to show you the front page of the newspaper from the day you were born, and all you had to do was give them your date of birth. Bold? Yes. Transparent? Not so much.
That instance was just one instance of a larger set of dark pattern techniques that publishers use to weasel you out of sensitive information. These are less illegal than shady, maybe even manipulative. Despite their varied nature, they share a common trait: You volunteer data for one reason, only to find it has been used for another.
Have you ever signed up for a virtual event, then been served targeted email ads from a sponsor of the event? Or entered a give-away where your entry in the raffle signs you up to receive promotional information from a host of websites you have never heard of? Or agreed to take a one-minute survey that endlessly surfaces new questions, in an apparently never-ending format designed solely to gather as much information from you as possible until you quit?
As you might have guessed, these and more have all happened to me. (I like to tinker on websites; I promise I am not as gullible as this makes me sound!) All of these efforts mislead users, omitting or obscuring key information in order to get data from unwitting or well-intentioned users. These are dark patterns at their most banal, but they are offensive and erode user trust nonetheless.
Oh you forgot you were subscribed?
I wrote about this in one of my better-titled Medialyte articles, and I still believe it: 40% of paying subscribers to news products are sleepers, meaning they have not visited the site they are paying for in the last month.
Publishers should send reminders to subscribers when they are being charged –– if not every month, at least once a quarter. No one should be paying for a service that they have forgotten they are paying for, full stop.
If we worked at a carnival, I might turn a blind eye to this kind of blatant hucksterism. But publishers need their readers to trust them, and nothing says grift like surreptitiously taking money from people who once wanted to support you.
This is especially pernicious because a lot of publishers lure in subscribers with discounted trial rates, then jack the price up six months later unannounced. Whether or not you agree that subscribers should be notified every time their card is charged, it is downright criminal to raise the price of their subscription without any kind of notice.
The news media can act high and mighty and preach about serving the people, or it can jilt people out of their hard-earned money through sleazy money-grubbing. Not both!
Is this an ad?
Ah, native advertising, that sweet, sweet fruit that just happens to be hanging from the tree of the knowledge of good and evil. I absolutely believe that native advertising has a place in the news media, but not when it is indistinguishable from the proper editorial.
If this grievance sounds like I plucked it from 2015, consider that the world of native advertising has changed less than you as a news consumer might have. Is native advertising now better demarcated, or are you simply better able to spot it?
Like with op-eds, native advertising is so effective because it so closely resembles standard reporting. For the vast majority of news consumers, the difference is so slight as to be irrelevant. Sure, these camouflaged ads do little to harm the reader, but they again trounce on the trust that publishers claim to consider so important.
If we want readers to stop decrying the news media for clickbait or outrage clicks, dark patterns like misleading native advertising must become a relic of the past.
Some good readin'
— The newest entrant in the conglomeration wars emerges: TMB. (Adweek)
— What is the over/under for how long it takes for crypto to merge with QAnon? (Vice)
— Local newspapers are steadily growing their subscriber bases. Go subscribe to your local newspaper! (New York Times)
— Nerdy but wonderful: The absolute best explanation for how the platforms are using privacy as the battle-ground in their proxy war for dominance. (Stratecherry)
— New York Magazine's Are U Coming newsletter is my groundhog for whether the social scene is back or yet. And baby, it is back! (The Cut)
— Can we all agree that the future is not an exclusively digital one? My personal goal for 2022: Get away from my computer, out of my house and off of my phone. (Kneeling Bus)
— If you are still not subscribed to Blackbird Spyplane at this point ... (Blackbird Spyplane)
Cover image: "Untitled," by Mark Rothko