Raashee Gupta Erry on Dark Patterns in Digital Marketing

Transcript

Marie Potel-Saville  00:03‍

There's really nothing sustainable about tricking users. Fair patterns are interfaces that empower users to make their own informed and free choices. Amurabi presents fighting dark patterns begin your free will online.

Marie Potel-Saville  00:24

Hello, and welcome everyone to a new episode of our podcast fighting dark patterns regain your freewill online. As you probably know by now, dark patterns are interfaces that deceive or manipulate you online. As a result, you end up acting without realizing or against your preferences or even against your interests. To give you just a practical example, there's a sadly classic dark pattern called social proof or social pressure, where some information is being pushed to users, saying, for example, that 45 people are looking at the same hotel room as you as you do, or Skycity where a countdown is being pushed, as you navigate, saying only one hour left, or for example, only one item in stock. It's usually fake information the time or the amount of items in stock, but even if the information is accurate, it plays on your cognitive biases to make you buy more or at a higher price. I guess this leads us nicely to today's episode, where we're going to dive into dark patterns in digital marketing. Some people might consider that marketing is in any event, some form of manipulation more or less so that it's almost impossible to do that job as marketers without, in one way or another tricking users. With us today to discuss dark patterns in marketing. I have the pleasure of welcoming Raashee Gupta Erry who is a very senior expert in marketing, advertising and consumer privacy. And Raashee, namely spent two years working at the Federal Trade Commission precisely on the issue of dark patterns. Welcome Raashee.

Raashee Gupta Erry  02:30

Thank you, Marie. I'm very, very happy to be here.

Marie Potel-Saville  02:33

I guess it would be nice for our listeners to get to know you more, because you have quite an unusual path and career journey. So could you please tell us about your journey, and in particular, what led you to working with the FTC on the issue of deceptive patterns and dark patterns?

Raashee Gupta Erry  02:58

Sure, thank you. As you said, I've had an unusual path, a windy path, to say the least. So I'll summarise it quickly for the listeners here. I've been in the advertising industry in various leadership roles, doing advertising and marketing work. For past 18 years, my work has been primarily in the United States and I've had the fortunate experience of being in all sides of the ecosystem as they say it. One, I've been on the brand side. So I used to work at Samsung and Volkswagen, leading all of their digital media and social media. Then I've had the advantage of being in the ad agency world where the rubber meets the road where a lot of sorts of execution takes place. So I've gotten my hands dirty doing programmes and leading advertising for our brands, such as American Express, T Mobile, Google, to name a few. And then the third pillar of my experience is in the ad tech side. So at the companies that I mentioned before, I've always been on the buy side, as a buyer of the services of advertising technologies. I was very curious to understand how the products are being made and delivered. So I took this opportunity at New Star. That was my corporate experience. And after that, I went into consulting for a bit and that's where I ran into privacy questions. So falling into privacy wasn't a path that I had chosen for myself, I just sort of like fell into it because clients were coming when they were designing their websites and asking like, what do we do with the cookie banner, I got this opportunity then go to FTC. And it was really a unique opportunity for me where I could bring in my advertising experience and my interest in privacy, and my work at FTC was very diverse. So my work touched investigations rulemaking, market research, policy work, but it always sort of connected advertising, marketing and privacy topics.

Marie Potel-Saville  05:15

That's fascinating. You've really seen all the different facets of the job from the brand, to the agency to the ad tech to even the regulator. This is really great. Raashee, thanks a lot for sharing. I guess my second question is going to be, you know, for the marketers listening to this episode, why marketers should care about dark patterns? And how does that relate to their daily job or even business priorities?

Raashee Gupta Erry  05:46

Yeah, I'll put my marketer hat on since I've been in these job roles and I can sort of give you my point of view.  Marketers, in their daily job as they are building these experiences, are not thinking in the sense like “this is a dark pattern.” They're always sort of like building experiences with various outcomes in mind : user trust, brand reputation, long term customer relationships. And these are the reasons why what marketers are asked to do is to build experiences that drive trust, revenue, conversions, and short term or long term customer relationships.

Marie Potel-Saville  06:28

Sorry sorry Raashee, but then how do we end up with so many dark patterns in digital marketing?

Raashee Gupta Erry  06:35

This is what people are striving to build and I'm not saying that they are marketers who don't do this right, or there are no mistakes that happen. But this is where Dark patterns come into play. And as they are building these experiences, there are things that they need to keep in mind. So things such as negative user experience, when you're building experiences, users feeling tricked or frustrated by different design elements can lead to frustration can lead to negative sentiment on social media. Second reason why marketers should care about dark patterns is because they intended to gain user trust and brand reputation. And this is the same reason why dark patterns is important is because when customers feel deceived or manipulated, it damages the long term relationship of the company, you lose the loyalty of the of the customer.

Marie Potel-Saville  07:30

Absolutely. And if I may add in our r&d lab, we've researched extensively the issue and there are actually several studies, exactly measuring the level of discontent of users, and even disgust with the brands at stake using dark patterns. And it's over 50% of users who realised having been tricked that actually don't want to have anything to do with that particular brand ever again. So definitely this is backed up by some evidence.

Raashee Gupta Erry  08:06

This is a challenge. A lot of times marketers are always looking at the short term gain, they want to drive conversions, they want to have X number of orders fulfilled, they need to have X number of customer inquiries, whatever it might be from a b2b or b2c perspective. But it's very easy to put your blinders on and forget about the long term, the long term is the trust, the reputation, the loyalty, the advocacy that a happy customer will do for you.

Marie Potel-Saville  08:40

Absolutely, absolutely. Or even middle term, you know, necessarily long term, but just not immediate.

Raashee Gupta Erry  08:46

It's not immediate, it's not like your monthly numbers.

Marie Potel-Saville  08:50

Exactly. So I would love to hear your thoughts on how marketers could actually benefit from fighting dark patterns, again, in their daily job.

Raashee Gupta Erry  09:03

Yeah, so there are different ways that having an approach that is keeping ethical design in mind and finding dark patterns can be really helpful, and again, it goes back to what we just mentioned, you can drive enhanced brand reputation. So we all know and there's a lot of data out there that confirms that brands that are trustworthy, that are transparent, that are customer centric, have a longer and a better relationship with their customers. They have more repeat customers, they have more loyalty with their customer base, they have more referrals and things like that. So tying back to the business outcome, this is how a transparent and a customer centric brand who is using design in a trustworthy and ethical manner can move the business needle forward. From a practical perspective, we all have now seen, there's a lot of regulation in the marketplace, the regulators are really active, everybody is concerned and watching sort of all the privacy laws and dark patterns have become a component of these laws. So marketers can benefit from protecting their company from a legal and compliance risk perspective too, because it has a ripple effect in terms of any bad advertising or manipulative advertising or a user experience that is deceptive or you have collecting data on your website and not being transparent about your practices and giving proper permissions can then eventually lead to compliance risk.

Marie Potel-Saville  10:41

Exactly well you cannot even use that data because it's not been lucidly processed in the first place. And the ripple effect is so true, if you're thinking in terms of penalties that can be imposed by the FTC in the US or other regulators in Europe, but also reimbursement obligations, obviously, thinking about Epic Games. You know, the 250 Millions they had to repay to customers they had tricked on fortnight through dark patterns, but also class actions. I think that's also a form of ripple effect, let alone the effects on brand and reputation. So yeah, definitely.

Raashee Gupta Erry  11:27

I think it also can help build a competitive advantage because consumers are much more savvy, or now they are a lot more aware of these patterns, these privacy implications this choice than they are given or not given. I think a brand can stand out as an opportunity to stand out by being more transparent, more honest, in its practices more forthcoming with consumer choice from a competitor standpoint.

Marie Potel-Saville  11:55

I absolutely love the competitive advantage. And the OECD totally agrees with you.

Raashee Gupta Erry  12:01

Right. I'm glad to hear that.

Marie Potel-Saville  12:04

Great point. For the listeners, I'm referring to the OECD report on dark patterns that was released in October of last year. And of course, we'll put the the link in the reference along with the podcast episode. I guess that also leads us to our next moment in the episode where we usually listen to an audio extract. And today we've chosen an extract which is not new at all. It dates back to over a year ago but we believe it's extremely interesting because it's Lina Khan, the FTCs President explaining her vision of protecting consumers from mass deception and mass manipulation, namely, through dark patterns.

Lina Khan  12:59

There's a deep conversation right now and one that also falls in the FTC wheelhouse around data privacy and security instances in which firms were able to renege on their commitments. And so you know, entered the market or made certain acquisitions or firms that were a bit more privacy protective and then ended up reneging. All of a sudden consumers are locked in and suddenly have to surrender even more data or surrender to being tracked on a greater set of websites. And so I think those types of moments really underscore the point that in many instances users are not exercising free choice and or not consent into these practices, but really feel locked in.

Marie Potel-Saville  13:00

Lena Khan expresses it really well. Users end up being locked in, not having a real choice and not being able to make their own decisions. Basically, Raashee given your experience working with the FTC organizing a now famous workshop on dark patterns for the FTC, and working also to prepare the staff report of the FTC on dark patterns, what are your key takeaways from that workshop and the staff report?

Raashee Gupta Erry  14:13

Thank you for allowing me to comment on that. So the workshop that was put together, this is was in April 2021, so it's a little old but it's still has very valid outcomes and very valid guidance that has a lot to learn from and love to sort of take lots of takeaways. So the workshop was designed to bring together various entities from researchers to legal experts to advocates with the consumer side and also industry professionals to really sit back and examine dark patterns, how dark patterns differ ? How they affect consumer behaviour ? What are harms and caused by dark patterns? How some groups are more vulnerable to dark patterns or are targeted more ? What are the different laws that are in place today ? What maybe new or an additional rules and standards or enforcement actions may be needed to have a systemic change ? And through the workshop, and through all these differences to the staff report, it was very clear : there is a persistent presence and even more severe rise of dark patterns in the digital market. Just like this audio pointed out that Lina Khan mentioned, the digital markets are deeply rooted in data and data is the currency, data is the data is everything. And there is a heightened desire to use design and UX techniques to persuade people to give more personal data to share more personal data, which is then further sold, shared, aggregated and used in various ways : be it advertising, be it personalization of experiences, upsell or cross sell of products. And all of this is happening without transparent knowledge of how the data is being used, and without the right choices and right consent.

Marie Potel-Saville  16:15

Exactly. And there's even a famous report that was released in February of this year, I think, and titled, "Americans can't consent to the use of their data" to which you participated I think.

Raashee Gupta Erry  16:30

Yeah, that is so true. And also there was another report that during my time that was published on ISPs. It clearly sort of like pointed out design choices that some of these ISPs make which is very much misleading. For example, the “Accept” button is super blue bold, but then the “reject” button is greyed out. So these are all the different sort of tactical ways that dark patterns are prevalent. And this is things that were pointed out in the workshop.

Marie Potel-Saville  17:05

And my understanding is that, you know, this workshop had actually an influence on other regulators, or inspired other regulators to do the same. For example, I was invited by the ICO, the UK Data Protection Authority, to take part in one of these workshops on dark patterns, which was exactly as you said, you know, multidisciplinary, with researchers, academics, and business stakeholders as well, to try to dig further into this issue, and also to help regulators to produce guidance or better enforcement actions. I think this is also clearly the case, one of the outcomes of the FTC workshop, was the staff report that was published by the FTC couple of months afterwards. What's your main take on the staff report?

Raashee Gupta Erry  18:02

Yeah, I think that staff report is a really good read for anybody trying to like wrap their head around, what are the different kinds of dark patterns out there, which is a knowledge for you to have, so you can apply to your business or your organisation to it also gives an understanding of things that enforcement agencies regulators are looking at, and how dark patterns are classified in various different ways. But my big takeaway from the report, outside of the 10 different categories that are in there, is that there is a need in the marketplace for understanding the dark patterns, being able to detect dark patterns early on, and then analysing the incentives that are behind that drive the development and deployment of these dark patterns and we talked about it a little bit : Are they the incentives tied to your short term goals? Are they incentives tied to trying to meet a business need? Or is there just not a culture of change in the organisation that is prioritising ethical design? Big picture. I think there is a need for people to decipher between what's created, what's clever and what's creepy. I think a simple gut check would be like : do a self test right? If it's confusing to you, cumbersome to you : That's a red flag right there to take a pause and to understand and evaluate it further.

Marie Potel-Saville  19:34

Absolutely. I love the idea of the health check, the sanity check. Actually, this is something that we created for all stakeholders. You know, it's a couple of fairly basic questions, for example, is the "I Agree" button more salient, you know, big fat and green and the "reject" button which is just a tiny grey link, that kind of very simple question so that you can also self-assess what you're creating or asking designers to create. Do you have some practical tips for marketers to either avoid dark patterns? Or perhaps convince decision makers that it's not all about boosting opt ins? Any practical advice?

Raashee Gupta Erry  20:25

Oh, yeah, sure. So we can talk a little bit about both. So from a tactical perspective, in terms of avoiding that patterns, some ways to do it would be like, try to focus on transparency. What that means is, when you are doing designing experiences, clearly communicate whether it's your pricing, your terms, avoiding hidden costs or terms that are hard to understand. Opt in for plain language : writing for a normal consumer, like eighth grade English would probably serve everybody well. And you talked in the beginning about honest social proof. So I think if there are places where customer testimonials, or celebrity endorsements and things like that are used, it's very important to be genuine about it. If they are fabricated or created in a way to create this fake appeal for the brand, they are not serving anybody well. And then lastly, this is all in the framework of marketing, but I think ethical design and the dark patterns, we're also seeing a lot in terms of the privacy experience that now is so important and prevalent in any jurisdiction. So whether you're giving your privacy notices on your website again, is it working in plain English? Or is it like really stuffed up with legalese? Is it available? Like the cookie banner the Accept or Reject buttons? Are they in clear design choices? Are they designed for clarity or simplicity? When you go to your preference for consumers, are they able to toggle clearly? Or are you already pre opting them in? Or are they actually given a choice to opt in versus opt out? And then lastly, I've seen data subject access request portals, like people are going there to like, ask for activation of their rights in terms of privacy rights, like rejection or asking for information. Is there like clear design choices that are made there? Or is that process really hard for people to act upon? So I think the spectrum of opportunity to apply ethical Design, Fair patterns is huge. There are a lot of different places where design can help elevate the brand overall, can avoid legal risk, and can build user trust.

Marie Potel-Saville  23:07

Absolutely. And you know about the so called less sexy side of privacy. I may disagree perhaps with you because you know, part of our job is to transform these, these not sexy at all documents originally, into precisely a satisfying user experience, into a document that you feel like reading. So we've been creating privacy sagas, for example, for King in the video game industry, we've been creating privacy quizzes, we've been creating privacy dashboards, which precisely are fair patterns, what we call fair patterns, meaning interfaces that really empower users to make their own informed and free choices. And to be honest, the good news is that it's totally possible. It's probably not even more work.

Raashee Gupta Erry  24:01

I've seen one of your documents. I have to say I fell in love with the NDA that I've never seen before. This was like a nicely done piece of art.

Marie Potel-Saville  24:17

Well, who knew? Who knew NDAs could be delightful? Well, thank you so much, Raashee. It's been a real pleasure having you today on this episode.

Raashee Gupta Erry  24:28

Thank you so much Marie, for having me. It's such a wonderful conversation is such an important conversation. I hope there's some takeaways for people here. And it was a really great conversation. Thank you.

Marie Potel-Saville  24:42

Thank you so much, Raashee, and until the next episode on dark patterns regain your free will online, where we are going to talk about the economic incentives to switch from dark to fair patterns from a sheer business point of views. So have another great conversation I'm sure. And until then, take care. Watch out for dark patterns and see you soon.

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