• by Wendy Davis  @wendyndavis, November 13, 2023

The Federal Trade Commission's lawsuit against Amazon over its alleged use of “dark patterns” threatens all online advertising, the Interactive Advertising Bureau says in new court papers.

“Whatever happens with Amazon, IAB and its members are gravely concerned about the threat to truthful speech in advertising and uneven, subjective enforcement,” the association argues in papers filed Friday with U.S. District Court Judge John Chun in Seattle.

“As a company suffering from this uneven, subjective enforcement, Amazon rightfully raises these concerns in the context of defending itself,” the group writes. “IAB’s perspective and concern is far broader, as its members and all online advertising will potentially suffer from the chilling effect that comes with this court accepting the FTC’s attempt to regulate truthful speech.”

The organization's new papers come in a legal battle between the FTC and Amazon dating to June, when the agency accused Amazon of charging Prime subscribers without their consent, and violating a federal law that requires companies to disclose all subscription terms in advance, and offer simple cancellation mechanisms.

The FTC's complaint alleged that Amazon used “manipulative, coercive, or deceptive user-interface designs,” to dupe people into signing up for subscriptions to the $15-a-month Prime service.

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 agency.

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

Amazon urged Chun to dismiss the lawsuit at an early stage, arguing that the allegations in the complaint, even if proven true, wouldn't show that the company deceived users or violated any laws.

The company also that allegations about "manipulative" designs implicate all marketing, writing that commercial ads often use “strategically placed textual and visual displays or attention-grabbing fonts and colors.”

Late last month, the IAB sided with Amazon in a proposed friend-of-the-court brief, arguing that the agency's complaint amounts to an attempt “to regulate and punish truthful statements made in advertising.”

The organization added that some of the allegations deal with everyday practices.

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

The FTC objected to the proposed brief and asked Chun to refuse to allow the ad group to weigh in, arguing that the group was trying "to position itself as an expert on user interface design."

"IAB is not presenting an expert report; rather, it is a trade association,” the FTC wrote.

The IAB countered Friday that its brief offers “a unique and important perspective born from IAB’s nearly three decades of experience involving issues in digital advertising and marketing.”

The organization added that its argument “focuses on how the FTC’s subjective analysis of Amazon’s design elements threatens to disrupt all online advertising and use of design elements.”