Update Applicable to:	Effective Date
All Covered California Employers	See Details Below

What happened?

On September 4, 2024, the California Privacy Protection Agency (CPPA) issued an enforcement advisory on dark patterns.

Quick Summary:

• The CPPA Enforcement Advisory No. 2024-02 addresses using dark patterns in user interfaces, emphasizing that these designs manipulate consumer choices and are prohibited under the CCPA.

• It advises businesses to review user interfaces to ensure they provide balanced choices and use clear, easy-to-understand language for privacy options to ensure valid consumer consent.

What are the details?

• On September 4, 2024, the California Privacy Protection Agency (CPPA) issued an Enforcement Advisory on dark patterns, following discussions from their July 16, 2024, board meeting (previously informed by Vensure – See source references below).

• During this meeting, the CPPA advanced several draft regulations to formal rulemaking, including those addressing deceptive design practices.

• Definition: Dark patterns are user interface designs that manipulate or impair consumer autonomy, decision-making, or choice, particularly when asserting privacy rights or giving consent.

• The advisory emphasizes using clear, understandable language and providing symmetrical choices to help consumers make informed decisions.
  
  • To avoid dark patterns, businesses should:.
    
    • Use easy-to-read language, avoiding technical jargon
    • Ensure privacy-protective options are as easy to choose as fewer protective ones.

• The CPPA advises reviewing user interfaces to comply with the CCPA, which prohibits designs that impair consumer autonomy and decision-making.

• Invalid consent could lead to allegations that all processing activities based on that consent are unlawful, subject to civil penalties of up to $2,500 per violation and up to $7,500 for willful violations.

• This advisory serves as a guideline for businesses to ensure compliance by avoiding dark patterns in their user interfaces.

Business Considerations

• Employers should review and update their user interfaces to ensure they use clear, understandable language, avoiding technical jargon, to help consumers make informed decisions and avoid dark patterns.

• Employers should integrate privacy and dark pattern analysis into their product and user interface design processes to comply with regulations and avoid deceptive practices. This will help them stay compliant and avoid penalties.

• Employers should consider a regular review of their consent mechanisms to ensure they are not using dark patterns, as invalid consent could lead to significant civil penalties.

Source References

• CPPA Dark Pattern Enforcement Advisory
• CPPA Enforcement Announcement
• California CPPA Updates its Priorities to Privacy Notices and Policies, Right to Delete, and Consumer Requests (VensureHR Communication)

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