Dating Website Group no “Match” for the FTC

The FTC just finalized a $14 million order putting an end to their years-long investigation into Match.com. The order, which stems from a complaint filed against Match.com in September 2019, hits on two issues that the FTC has focused on over the last few years: (1) the use of dark patterns and (2) the Negative Option Rule. These issues are related, but the Match.com complaint and order lays out the alleged issues the FTC had with Match.com's practices.

Dark Patterns

In the September 2019 complaint, the FTC alleged Match.com's unsubscribe process was overly burdensome to customers. The FTC used statements by Match employees that the cancellation process to at least six distinct "clicks" to unsubscribe.

Additionally, the FTC quoted Match's own head of customer service who said in 2016 "it's been the same complaint for the past decade that I've been with Match...It takes up to 7 or 8 clicks to complete the flow to turn off [subscriptions] if you can even figure out how to do it."

Match also utilized a "six month guarantee" that Match deliberately made difficult to understand and failed to maintain "clear process to claim the guarantee", according to the complaint. Out of the 2.5 million subscriptions that were subject to the guarantee, only 32,438, or roughly 1.2%, free six-month descriptions were claimed.

This is the exact problem with dark patterns. Dark patterns, as described by the FTC, are manipulative design practices designed to obscure, subvert, or impair consumer autonomy. Here, by making it extremely hard to unsubscribe or difficult to learn more about an advertised guarantee, Match was using very common dark patterns.

The FTC's order requires Match to "clearly and conspicuously disclose any material restrictions, limitations, or conditions". The FTC also, once again, defines clearly and conspicuously in the order as "easily noticeable (i.e, difficult to miss) and easily understandable by reasonable consumers".

Negative Option Rule

The FTC also claimed that Match.com violated the Negative Option Rule by failing to provide make the cancellation process simple. The Negative Option Rule has had an interesting year, because it was the rule that was being amended by the Click to Cancel rule. However, the Eighth Circuit recently vacated the amended rule on procedural grounds.

The FTC was able to use the existing rule to claim that Match.com made it extremely difficult to cancel. And the order stated that for "any Covered Service with a Negative Option Feature...[Match is] permanently restrained and enjoined from failing to provide simple mechanisms for a consumer stop recurring charges". While the now-vacated "Click to Cancel" rule focused on making it easier for consumers to cancel subscriptions, it's clear the FTC is still actively looking at companies businesses practices using the tools it has at its disposal now.

The FTC's recent action against Match.com, while not as flashy as some of its other recent cases, underscores their focus on protecting consumers from deceptive practices. It's a powerful reminder the agency is using its existing authority to target dark patterns and negative options. This settlement should serve as a wake-up call for companies that are still using confusing subscription and cancellation flows, because as Match.com just learned the hard way, what you think is "good enough" for the customer experience might just land you in a world of regulatory trouble.