Have you ever seen a charge on your credit card statement for a subscription you purchased long ago and thought, “UGH. Didn’t I already cancel this?!” 

But then you head to the site to find the cancellation button and – hmmm. It isn’t there. 

Or you can find it after you hunt every last square inch of the web page, but it’s in 4-point font, and you can’t physically click on it. 

Or you found it, clicked on it, typed your name and email address into the “cancellation” box, confirmed you aren’t a robot, answered the “why are you canceling” survey, and jumped through 17 other hoops just to be met with the message: 

Sorry, we’re unable to cancel your subscription at this time. 

SHEESH. Exhausting. 

And that’s the point. 

It’s almost exhausting enough to make you just give up and remain trapped paying for that subscription forever. 

This is just one example of shady digital marketing techniques – “Dark Patterns,” as the FTC refers to them. 

In fact, just last year, Vonage ended up with a $100 million dollar settlement for making it next to impossible for customers to cancel their VoIP services. 

While I’m sure you aren’t doing anything this extreme as a business owner, it’s important to be aware of what constitutes a shady digital marketing technique.  

And avoid them in your own marketing. 

Because the bump in traffic or conversion it brings is never worth the damage it will ultimately do to your brand. 

**Real quick before we jump in: 

Everything I share is legal education and information. It’s not business, financial, or legal advice, and it doesn’t create an attorney-client relationship between us.*

What constitutes a shady digital marketing technique?

 Not every shady deed is blatantly obvious. 

The FTC has found several techniques to be unlawful, “while others would depend on a case-by-case evaluation of all the attendant facts.” 

But these underhanded marketing techniques are generally identified as a practice designed to “trick or manipulate someone into making choices they would not have otherwise made and that may cause harm.” 

For example, the false urgency scam. 

We’ve all seen this one play out (and maybe even been taken in by it): 

You end up on a landing page for something you’re halfway considering purchasing, and you see a BIG red countdown clock threatening that the price will double in t minus X hours. 

Psychologically, you’ve got a crushing sense of urgency that you MUST hit buy. 

So you hit buy. 

**Note: if you’ve used this tactic before but the urgency was real, and the price really did double in X hours, don’t panic. You haven’t submitted your customers to anything shady. 

But then the next day, you happen to check that landing page again, and lo and behold, the timer has been reset. 

This is clearly shady.  

And it’s likely there were other shady elements at play – like a deceptively hidden disclosure somewhere else on the web page. 

According to the FTC, other unethical (or downright illegal) digital marketing techniques include: 

–False claims

–Ads disguised as articles

–User interfaces that hide disclosures

–Website designs that obscure privacy choices

–Undue roadblocks to canceling subscriptions or memberships

 Plus so many more depending on the channel, industry, and medium.

The consequences of shady digital marketing techniques

 Aside from Vonage, several other actions have been brought against perpetrators of these “dark patterns,” including: 

→ A $1.5 million settlement due to emails that were sent to consumers falsely claiming they were coming from news sites. When a user clicked on them, they were ultimately routed to a sales website. 

→ An $18 million settlement when fees were hidden in Lending Club’s loan application (they required scrolling to be visible). 

→ A $10 million settlement because ABC Mouse failed to tell users the membership would continue indefinitely. Canceling required a user to navigate 6-9 screens with multiple buttons displayed to remove the user from the cancellation experience.  

→A $2.2 million settlement because Vizio had a default setting turned on that collected TV viewing data and shared the data with third parties. 

As we also saw with the Vonage settlement, this is likely just the beginning. 

As more and more of these shady digital marketing techniques become obvious, we can expect that more and more of them will be targeted. 

If nothing else, it will make the gray area of these backhanded practices more black and white and easier to navigate what to do about them in the future.

The damage done by shady digital marketing techniques

The obvious harm is the time and money that these tactics steal from clients/consumers. 

The less obvious harm is the complete erosion of trust in making purchase decisions from anyone.  

Even from an honest, small business owner like yourself. 

So what can you do to combat not only these shady digital marketing techniques but also the damaged trust of your clients/customers? 

I’d recommend starting here: 

–Be open, honest, and transparent in your advertising and online marketing

–Share as much of your process as possible with your online followers 

–Never hide pertinent information on your website, emails, social, etc.

–Always display updated reviews (with a signed testimonial release for each)

–Use clear disclaimers/disclosures whenever possible (especially when you make a claim)

–Clearly outline your cancellation process in client contracts and police them accordingly

–Ensure you’re using updated website Terms and Conditions and Privacy Policies

–Double-check your Terms of Use for digital products and online memberships

Keeping your marketing techniques legal and ethical

As an attorney for small business owners, I know most online entrepreneurs do everything in their power to be honest and real. 

Because while keeping all your legal ducks in a row can be incredibly overwhelming, most of us are quick to identify what’s ethical. 

And what isn’t. 

That said, it can be easy to fall into a false sense of security that something is okay when you see other brands – especially major ones – using those tactics and techniques. 

When you see something that raises red flags, double-check this article and the FTC links throughout to make sure you’re not venturing into shady territory. 

And if you’re ever in doubt, you can’t go wrong when you verify your gut feelings with your attorney. 

Need to make sure you’re keeping everything above board?  

You can find templates for client agreements, disclosures, releases, and more in The Legal Shop.


Learn even more about protecting your business when you join the list of exclusive listeners of the Uncomplicating Trademarks podcast. 

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