• by Wendy Davis  @wendyndavis, October 27, 2023

The Interactive Advertising Bureau has joined the roster of outside organizations urging a judge to throw out the Federal Trade Commission's charges Amazon used “dark patterns” to trick consumers into purchasing Prime subscriptions and thwart cancellation attempts.

In a proposed friend-of-the-court brief filed with U.S. District Court John Chun in Seattle, the IAB argues that the FTC is attempting “to regulate and punish truthful statements made in advertising.”

“The FTC’s 'dark patterns' are described ominously in its complaint, but in substance they largely include a handful of benign, ordinary statements made in the course of Amazon marketing the benefits of its Prime membership and 'design elements' chosen by Amazon, such as the use of color to draw a consumer’s attention, to communicate Amazon’s message that Prime is valuable,” the organization contends.

“Ironically in a case alleging 'manipulative design elements' ... the FTC’s Complaint uses bureaucratese and terminology that has a negative connotation designed to distract from the reality that nothing the FTC is alleging is actually false or misleading,” the IAB adds.

The papers come in response to a lawsuit brought in June by the FTC, which alleged that Amazon charged users without their consent, and that the company violated the federal Restore Online Shopper Confidence Act -- which requires companies to disclose all subscription terms in advance, and offer simple cancellation mechanisms.

The complaint alleged that Amazon used “manipulative, coercive, or deceptive user-interface designs known as 'dark patterns' to trick consumers into enrolling in automatically-renewing” subscriptions to the $15-a-month Prime, which offers subscribers discounts, free delivery of many items, access to streaming video through Prime Video and other benefits.

Many of the FTC's allegations centered on the site's design.

For instance, the FTC alleged that Amazon's interfaces required shoppers to say whether they will enroll in Prime before completing a purchase. Though Amazon allows consumers to decline enrollment, that choice is “less prominent” than the enrollment option, according to the FTC.

The agency also said Amazon “knowingly complicated” the Prime cancellation process.

Amazon recently asked Chun to dismiss the lawsuit at an early stage, arguing that none of the FTC's allegations, even if proven true, would show the company deceived users or violated any laws.

Other groups backing Amazon include the tech industry organizations Computer & Communications Industry Association, NetChoice and Chamber of Progress.

The IAB argues in its proposed brief that some of the allegations relate to everyday practices.

“Efforts to make certain that someone want to unsubscribe before actually unsubscribing them are common,” the IAB writes.

The group also says the FTC’s “dark patterns” concept “crosses a dangerous line when it comes to the regulation of commercial speech.”

“The FTC appears to seek to punish, ban, and regulate speech that it has not -- and cannot -- allege is untruthful by applying the label 'dark patterns,'” the group writes.

“Prohibiting truthful speech that is too convincing is decidedly not a legitimate government interest,” the IAB adds.