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Reduce the Likelihood of Rejection with Implied Consent

| 10 min read

Implied consent is something you can use with the best intentions possible whenever you don’t want to disturb the users’ flow when they’re accomplishing a task. However, it’s still a little bit suspicious when you deliberately hide information, hoping your users will overlook it. Get some striking examples of both well-intended and darker designs that use the implied consent design pattern, and decide for yourself whether it is something to add to your designer’s toolbox. Once you know how, you can be as strategic (devious, conscientious, or a little of both) with it as your project demands.

The banner at the bottom of The Times website represents an example of implied consent; by continuing to use the site, the users are providing their consent indirectly. The assumption is that users have accepted the terms and conditions of use after viewing the message; however, with all of the other information on the page competing for their attention with bright colors, the implied consent banner is easy to miss. When designers really don’t want you to overlook information, they tend to use pop-up alerts in the center of the screen, which immediately grab your attention. Furthermore, by plying users with many message alerts, the designer ensures the users must interact in some way, such as clicking 'OK', in order to show they agree or provide their consent. In the case of The Times website, the user can simply continue without clicking the button. When they follow any link on the page, the banner disappears. Therefore, by placing the cookies message far from the center of the screen, the designers are trying to reduce the likelihood users will reject the request for consent—so they can collect and use your data.

Author/Copyright holder: The Times. Copyright terms and license: Fair Use.

The Times’ website uses a cookie banner that is placed at the bottom of the page, and uses colors that blend in with the rest of the interface. By doing so, the designers have implemented an implied consent design pattern, which tries to trick users into overlooking the option not to accept the cookies.

Another example of implied consent is when users are making bookings or purchases online. In most instances, users are provided with a checkbox that they must select in order to show they have read and agree to the terms and conditions associated with using the site, making bookings, or purchasing goods or services. However, on occasion, designers link a command button to the terms and conditions; so, when the user clicks the button, he or she is automatically accepting the terms and conditions. We see an example of this dark pattern below, where users provide their consent the moment they click the ‘Submit Order’ button. Although the Flickr designers might argue they are simply trying to save the users’ time, the tiny print used to state 'By clicking “Submit order”, I agree to the Terms...' suggests otherwise.

Author/Copyright holder: Flickr. Copyright terms and license: Fair Use.

The designers of the Flickr page may have intended to improve the user flow while registering, but have actually implemented a dark pattern in doing so. By clicking the ‘Submit Order’ button, the user implicitly consents to the terms, cancellation and returns policy, and privacy policy. He or she may have missed this, as the links to these terms and policies are presented in a much smaller and thinner font.

Why is this classed as a dark pattern?

In a completely transparent and user-friendly web design, users would be asked to provide informed consent; even if they simply click 'OK' to a request without reading all of the information, they have been given the opportunity to state in no uncertain terms whether they are happy to proceed or not. Some users might find these messages a nuisance—if they have to respond in an active way before carrying out their tasks—but a simple design that allows them to move on to their tasks with the minimum amount of effort lets them decide whether they are happy for their information to be used.

As designers, we want to remove as many obstacles to our users when they’re making bookings or purchases as possible; therefore, by our linking the command button to the acceptance of the website's terms and conditions, users do not need to carry out any separate action to show they agree. However, this is not necessarily in the users' best interests, particularly when the instructions, informing the user that clicking a certain button serves as agreement, are so small.

“Education is when you read the fine print. Experience is what you get if you don’t.”
—Pete Seeger, American folk singer and social activist

Author/Copyright holder: Evernote. Copyright terms and license: Fair Use.

Evernote also uses the implied consent pattern for registration, but at least places the links to the terms and policy statements closer to the sign-up button. Arguably, it is less readable due to the lively (moving) background. However, and importantly, it is certainly still there.

The designers might argue all of the information needed to make informed decisions is provided to the user; however, by using small print and weak colors for important text, they are trying to trick users into following links, making purchases, and agreeing to terms and conditions without considering all of the information provided.

Users are 'informavores', constantly scanning the user interface in search of information directly related to their current aims and objectives so as to get them to the end point as quickly as possible. By using small print and other wily techniques, we as designers can try to weaken the information scent for important details, such as the additional extras applied automatically on the next page. Subtle methods such as using different font colors and sizes might seem a relatively mild form of dark pattern; however, when they are used to sneak costly extras onto your purchases, you might be far less ready to dismiss them as ‘harmless’. Research suggests just 7% of us read online terms and conditions when making purchases and signing up for services. Failing to read the small print can lead to costly errors of judgment, as Jen Palmer, who was threatened with a $3,500 fine after leaving a negative review of US online retailer KlearGear.com, found. While the majority of users choose not to read the terms and conditions, assuming (sometimes wrongly!) their interests are protected, small print can be used as a dark pattern in a number of different user interface design situations; some are more underhand than others.

Ultimately, how you make this judgment call is going to be influenced by the brief for your client organization’s design. In view of this, you can be creative with how you deploy your buttons and text. Sure, you’re hardly going to work for a client who is so nefarious as to try getting users to sign away their rights to their property. Indeed, as the need to maintain user trust in the age of instant (and long-lasting) feedback is something of an insurance to keep companies from getting users to “sell their souls” before they even access the site properly, you should find yourself quite able to explore this dark pattern without needing to look over your shoulder all the time. Yes, you can strike a healthy balance between your obligation to your client and your sense of duty to your users.

The Take Away

Implied consent is a dark pattern you can use to reduce the likelihood that users end up rejecting the request for consent when accessing a web page or site. It is often used for consent to terms and conditions of online purchases, or for consent to the use of cookies on a web page. You can use visual design elements such as color, size, and position to make the request for consent as inconspicuous as possible, hoping that users will glance over it and continue to use the service. As users are constantly scanning the user interface for information that is directly relevant to their current task, chances are that we as designers can be successful with our darker intentions. With a careful eye for detail and an appreciation for what you are trying to ‘push past’ the users, you can enjoy considerable success with this design pattern, as it does have a wonderful tendency to increase engagement.

References & Where to Learn More

Hero Image: Author/Copyright holder: Kat Sommers. Copyright terms and license: CC BY-SA 2.0.

Jenifer Tidwell, Designing Interfaces: Patterns for Effective Interaction Design, 2010

Martijn van Welie, Pattern Library, 2008

Harry Brignull’s website dedicated to dark patterns

Terms and conditions: not reading the small print can mean big problems

A case for reading the small print

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