The California Attorney General recently approved modified regulations under the California Consumer Privacy Act (CCPA). One part of the modified regulations bans “dark patterns” on a website. What are dark patterns? Public comments to the proposed regulations describe dark patterns as deliberate attempts to subvert or impair a consumer’s choice to opt-out on a website. Dark patterns could be used on a website to confuse or distract a consumer into granting knowing consent instead of choosing the opt-out option.

The modified regulations therefore ban the use of dark patterns that:

  • Use an opt-out request process that requires more steps than the process for a consumer to opt back into the sale of personal information after previously opting out;
  • Use confusing language (e.g., double-negatives, “Don’t Not Sell My Personal Information”);
  • Require consumers to click through or listen to unnecessary reasons why they should not submit a request to opt-out before confirming their request;
  • Require a consumer to provide personal information that is unnecessary to implement an opt-out request; or
  • Require a consumer to search or scroll through the text of a website or privacy policy to submit the opt-out request after clicking the “Do Not Sell My Personal Information” link (but before actually choosing the option).

If your website uses any such dark patterns you may wish to revise those mechanisms and implement clearer, more transparent methods for your website’s users to opt-out.

Photo of Kathryn Rattigan Kathryn Rattigan

Kathryn Rattigan is a member of the Business Litigation Group and the Data Privacy+ Cybersecurity Team. She concentrates her practice on privacy and security compliance under both state and federal regulations and advising clients on website and mobile app privacy and security…

Kathryn Rattigan is a member of the Business Litigation Group and the Data Privacy+ Cybersecurity Team. She concentrates her practice on privacy and security compliance under both state and federal regulations and advising clients on website and mobile app privacy and security compliance. Kathryn helps clients review, revise and implement necessary policies and procedures under the Health Insurance Portability and Accountability Act (HIPAA). She also provides clients with the information needed to effectively and efficiently handle potential and confirmed data breaches while providing insight into federal regulations and requirements for notification and an assessment under state breach notification laws. Prior to joining the firm, Kathryn was an associate at Nixon Peabody. She earned her J.D., cum laude, from Roger Williams University School of Law and her B.A., magna cum laude, from Stonehill College. She is admitted to practice law in Massachusetts and Rhode Island. Read her full rc.com bio here.