4 ms·

Question to libertarian-minded HNers: what are the downsides of banning such practices by law?

kfk 14y ago
Really bad marketing practices are already illegal (like reducing the mileage of a used car...). Those highlighted don't look bad enough and basically the customer can spot all of them. Public shame is much more harmful, indeed Ryanair, for the bad overall experience it offers, is already at the bottom of my flight companies list.
stfu 14y ago
In my opinion the big question as always is, who decides what is "legal" and what is "illegal". People might have very different opinions about how capable others are of understanding what they click on or not. And as long as you don't install some design police which decides what is ethical and not, the most likely result is, that the TOS are just going to get amended with further warnings and disclaimers.
rquantz 14y ago
Try banning practices like this and you'll end up with over-general regulations that ban a lot of things that should be legal. When the government find itself with overly broad statutes, it frequently ends up applying them selectively, based on whatever criteria it chooses. This often ends up being based on things like race, or whether you're engaging in speech the government doesn't like, or whether you're engaged in activities that a politician's donors don't like (something a lot of startups like to do). Even if you can define the problem precisely so it is not too broad, in order to prevent arbitrary enforcement you would have to place a huge regulatory burden on either a government agency or website owners (or both). Every website that sells anything would have to register with the government(s) of whatever jurisdictions apply, and file reports showing that they are meeting the requirements. Then you run into problems regarding who is responsible for user generated content -- it goes on and on. For some particularly egregious types of fraud, these downsides can be worth it, but you have to be careful what you choose to regulate.
- lunarscape 14y ago
  >Every website that sells anything would have to register with the government(s) of whatever jurisdictions apply, and file reports showing that they are meeting the requirements I think the scenario you paint is completely unrealistic. Most consumer protection laws are not enforced like this. It's not FCC or CE marking we're talking about. Usually it's a case that when consumers complain (e.g. product not as described) the seller is investigated and, if found guilty, fined or punished as per the law. The rest of your argument, which I realise is for arguments sake, reads like a slippery slope argument because you provide no real examples.
  - dexen 14y ago
    > Most consumer protection laws are not enforced like this. It's not about actual enforcement, it's about perceived risks. Take for example recent legislation regarding HTTP cookies in EU -- it has stirred up quite a bit of FUD, slowing down use of this handy utility for decent purposes. Not because of some widespread persecution, but exactly because Fear, Uncertainty and Doubt on behalf of the good-willed netizens. Meanwhile, the proverbial Bad Guys do not care anyway.
tomjen3 14y ago
It is redundant. Sufficiently dark patters would be considered fraud as for those not that bad, well one might shop elsewhere.
- cousin_it 14y ago
  If using dark patterns is more profitable on average than not using them, then firms using dark patterns will outcompete firms that don't, so eventually you'll have nowhere else to shop, or at least your options will be significantly reduced. In some market segments that seems to have already happened.
  - billybob 14y ago
    Then again, if customers are annoyed enough by them, firms not using them will steal customers from firms that do. So the free market has a counterbalance. In the real world, this back-and-forth is always happening. I think the average result is that most businesses are mostly honest and most customers are mostly satisfied. Small example: I ordered flowers online for mother's day. The price shown on the front page was doubled by the service fees tacked on at the end. I understand that on a busy day, they need to charge more, but I thought it was slightly dishonest not to show the true cost up front. Slightly, but not an absolute ripoff, and not enough that I'll never buy again. So we have a truce. If they had hidden a checkbox that said "please also subscribe me to this magazine for $X a month", that would be too dishonest and they'd lose my business to someone who didn't do that.
slowpoke 14y ago
Refer to the UNIX Programming Environment: UNIX does not stop the user from doing stupid things, as that would also prevent them from doing clever things. Apply s/stupid/bad and s/clever/good and you have my view on this issue. Also, as others have pointed out, the most egregious cases are already considered fraud, and therefore illegal. I see no reason to make further laws.
- glogla 14y ago
  True, but UNIX also doesn't try to trick you into something or scam you in any way. There's no "Do you also want to run rm -rf /? [Y/n]" when you run email client.
  - TazeTSchnitzel 14y ago
    That's only because you don't use evilmail.
fleitz 14y ago
As always the unintended consequences. Why does a user buying an extra iPad case constitute something that needs to be banned by law, isn't it covered by caveat emptor? If government can mandate people to buy insurance what's wrong with a company putting insurance as a default? Perhaps instead of making defaults companies should petition the government to make such coverage mandatory. Haven't consumers shown their preferences by continuing to do business with these companies?
gyardley 14y ago
I'm more conservative than libertarian, but I'd argue that since laws generally have unintended, often negative consequences, the bar has to be pretty high before establishing a new law. I'd also argue that in America, there's far too many laws on the books already that criminalize trivial behavior conducted without criminal intent. That plus prosecutors more interested in winning than justice equals prison time for people who accidentally failed to follow an obscure regulation. Many of those 'dark patterns' could easily be implemented inadvertently and without malice. If I flub my product design and accidentally make my email opt-out options confusing, I deserve a little negative feedback, not jail time.
smashing 14y ago
I'm not a libertarian, but I do find laws to be applied arbitrarily at times. For instance, I live in a place where sharpies are banned in public areas. Local police use anti-vandalism as an excuse to stop and search anyone who looks like they are under the age of 20.

kfk 14y ago

Really bad marketing practices are already illegal (like reducing the mileage of a used car...). Those highlighted don't look bad enough and basically the customer can spot all of them. Public shame is much more harmful, indeed Ryanair, for the bad overall experience it offers, is already at the bottom of my flight companies list.

stfu 14y ago

In my opinion the big question as always is, who decides what is "legal" and what is "illegal". People might have very different opinions about how capable others are of understanding what they click on or not. And as long as you don't install some design police which decides what is ethical and not, the most likely result is, that the TOS are just going to get amended with further warnings and disclaimers.

rquantz 14y ago

Try banning practices like this and you'll end up with over-general regulations that ban a lot of things that should be legal. When the government find itself with overly broad statutes, it frequently ends up applying them selectively, based on whatever criteria it chooses. This often ends up being based on things like race, or whether you're engaging in speech the government doesn't like, or whether you're engaged in activities that a politician's donors don't like (something a lot of startups like to do). Even if you can define the problem precisely so it is not too broad, in order to prevent arbitrary enforcement you would have to place a huge regulatory burden on either a government agency or website owners (or both). Every website that sells anything would have to register with the government(s) of whatever jurisdictions apply, and file reports showing that they are meeting the requirements. Then you run into problems regarding who is responsible for user generated content -- it goes on and on. For some particularly egregious types of fraud, these downsides can be worth it, but you have to be careful what you choose to regulate.

lunarscape 14y ago
>Every website that sells anything would have to register with the government(s) of whatever jurisdictions apply, and file reports showing that they are meeting the requirements I think the scenario you paint is completely unrealistic. Most consumer protection laws are not enforced like this. It's not FCC or CE marking we're talking about. Usually it's a case that when consumers complain (e.g. product not as described) the seller is investigated and, if found guilty, fined or punished as per the law. The rest of your argument, which I realise is for arguments sake, reads like a slippery slope argument because you provide no real examples.
- dexen 14y ago
  > Most consumer protection laws are not enforced like this. It's not about actual enforcement, it's about perceived risks. Take for example recent legislation regarding HTTP cookies in EU -- it has stirred up quite a bit of FUD, slowing down use of this handy utility for decent purposes. Not because of some widespread persecution, but exactly because Fear, Uncertainty and Doubt on behalf of the good-willed netizens. Meanwhile, the proverbial Bad Guys do not care anyway.

tomjen3 14y ago

It is redundant. Sufficiently dark patters would be considered fraud as for those not that bad, well one might shop elsewhere.

cousin_it 14y ago
If using dark patterns is more profitable on average than not using them, then firms using dark patterns will outcompete firms that don't, so eventually you'll have nowhere else to shop, or at least your options will be significantly reduced. In some market segments that seems to have already happened.
- billybob 14y ago
  Then again, if customers are annoyed enough by them, firms not using them will steal customers from firms that do. So the free market has a counterbalance. In the real world, this back-and-forth is always happening. I think the average result is that most businesses are mostly honest and most customers are mostly satisfied. Small example: I ordered flowers online for mother's day. The price shown on the front page was doubled by the service fees tacked on at the end. I understand that on a busy day, they need to charge more, but I thought it was slightly dishonest not to show the true cost up front. Slightly, but not an absolute ripoff, and not enough that I'll never buy again. So we have a truce. If they had hidden a checkbox that said "please also subscribe me to this magazine for $X a month", that would be too dishonest and they'd lose my business to someone who didn't do that.

slowpoke 14y ago

Refer to the UNIX Programming Environment: UNIX does not stop the user from doing stupid things, as that would also prevent them from doing clever things. Apply s/stupid/bad and s/clever/good and you have my view on this issue. Also, as others have pointed out, the most egregious cases are already considered fraud, and therefore illegal. I see no reason to make further laws.

glogla 14y ago
True, but UNIX also doesn't try to trick you into something or scam you in any way. There's no "Do you also want to run rm -rf /? [Y/n]" when you run email client.
- TazeTSchnitzel 14y ago
  That's only because you don't use evilmail.

fleitz 14y ago

As always the unintended consequences. Why does a user buying an extra iPad case constitute something that needs to be banned by law, isn't it covered by caveat emptor? If government can mandate people to buy insurance what's wrong with a company putting insurance as a default? Perhaps instead of making defaults companies should petition the government to make such coverage mandatory. Haven't consumers shown their preferences by continuing to do business with these companies?

gyardley 14y ago

I'm more conservative than libertarian, but I'd argue that since laws generally have unintended, often negative consequences, the bar has to be pretty high before establishing a new law. I'd also argue that in America, there's far too many laws on the books already that criminalize trivial behavior conducted without criminal intent. That plus prosecutors more interested in winning than justice equals prison time for people who accidentally failed to follow an obscure regulation. Many of those 'dark patterns' could easily be implemented inadvertently and without malice. If I flub my product design and accidentally make my email opt-out options confusing, I deserve a little negative feedback, not jail time.

smashing 14y ago

I'm not a libertarian, but I do find laws to be applied arbitrarily at times. For instance, I live in a place where sharpies are banned in public areas. Local police use anti-vandalism as an excuse to stop and search anyone who looks like they are under the age of 20.