• by Wendy Davis , June 12, 2024

Amazon plans to raise a First Amendment defense to charges that it used so-called “dark patterns” to dupe people into signing up for Prime subscriptions and thwart cancellation attempts.

“Courts have long recognized that companies have a First Amendment right to truthfully promote their goods and services,” Amazon writes in court papers filed Tuesday that outline its planned rebuttal to a lawsuit brought by the Federal Trade Commission.

“Many of the features the FTC now casts as unlawful are traditional marketing techniques that involve no falsehood or deception whatsoever,” Amazon adds.

The company's papers come in response to a 2023 complaint by the FTC, which accused Amazon of wrongly using dark patterns to lure and retain subscribers to its $13 a month Prime subscription service, which offers discounts, free delivery of many items, and access to streaming video.

The complaint characterizes dark patterns as “manipulative design elements that trick users into making decisions they would not otherwise have made,” and many of the specific allegations focus on Amazon design elements.

Last month, U.S. District Court Judge John Chun in Seattle ruled that the FTC could proceed with the case.

Amazon said in a 76-page answer to the complaint that the FTC's definition of “dark patterns” is “vague and unworkable,” and that the examples provided by the FTC in its complaint reflect protected speech.

For instance, the FTC alleged that Amazon presented people who wanted to cancel or suspend subscriptions with “warning icons” that carried messages such as, “items tied to your Prime membership will be affected if you pause your membership.”

The FTC alleged that those warning icons evoke “anxiety and fear of loss in consumers.”

But Amazon says in its new court papers that the FTC is attempting to “impose liability based on protected speech,” and is finding fault with speech “that is substantively indistinguishable from traditional commercial advertisements that naturally seek to persuade consumers to purchase goods or services.”

The company writes: “The FTC might prefer that Defendants change the content of their speech or the way that speech is presented, but the First Amendment prohibits punishing Defendants for their communications and advertisements.”