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NAI’s Best Practices for User Choice and Transparency Help Companies Avoid “Dark Patterns” in Tailored Advertising

WASHINGTON, DC (May 10, 2022) – A new resource from the NAI, the leading self-regulatory association dedicated to responsible data collection and its use for advertising technology, informs companies about the practice of dark patterns, and it aids members in implementing best practices to avoid them. NAI legal and policy staff developed the report, entitled Best Practices for User Choice and Transparency.

“The use of dark patterns deceives consumers, conflicting with our core values of privacy, trust and accountability,” said Leigh Freund, NAI President and CEO. “Our members are committed to implementing best practices for user choice and transparency, like using concise language, fully disclosing data collection practices, and making it easy for consumers to exercise choice.”

“Dark patterns” refer to elements of user interfaces that deceive users into doing things they don’t intend to, such as making it difficult to opt out or unsubscribe.

The report has a threefold purpose: identifying best practices and guide companies in maximizing effective and efficient notice and choice mechanisms with respect to collecting consumer data; examining the current legal environment at the state and federal levels; and explaining consumer choice and transparency obligations under the NAI Code of Conduct (Code).

The NAI Code does not specifically address the use of dark patterns. However, with these Best Practices, the NAI strives to further apply the objectives of the NAI Code by providing recommendations to encourage members to maximize transparency and choice around the collection and use of consumer data for advertising and marketing purposes. The report includes illustrations that highlight these best practices for transparency and user choice.

At the state level, California and Colorado (and likely Connecticut soon) have already adopted prohibitions against the use of dark patterns in their state data privacy laws. At the federal level, the Federal Trade Commission (FTC) has indicated interest in developing new guidelines or regulations pertaining to dark patterns, and members of Congress have introduced legislation to provide for greater regulation of these deceptive practices.

The NAI is committed to championing best practices that reflect our commitment to promoting consumer privacy through transparency and user choice. In addition to promoting best practices and the NAI Code and Guidance, the NAI continually works to expand awareness of new laws, regulations, and enforcement actions regarding dark patterns.

Kate Cox-Nowak

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