Clickwrap agreements are the terms and conditions presented to a customer when they make a purchase online. They typically have to check a box or click a button stating that they agree to the terms and conditions.

These types of agreements are commonly used by ecommerce sites to collect user consent to online legal agreements, including return policies and other contractual obligations.

But some online businesses try to bury these terms and conditions in places where clients will not notice them and do not use the proper consent process. This is called a “dark pattern” – a deceptive web or app design practice intended to mislead consumers.

In order for these terms and conditions to be enforceable, they must be prominently displayed to the customer. The terms stated in these agreements must also be reasonable with equal bargaining power, and the language should be comprehensible to the average person.

Specific areas of consent must be easily distinguished from the rest of the content and cannot be buried within large paragraphs of text.

Businesses must also maintain accurate records of various iterations of the terms and conditions and they must also be able to produce records of who consented to which version(s) and when.

Any violation of these guidelines may void the terms and conditions.

Learn more about clickwrap agreements

Learn more about dark patterns

In the coaching and wellness industry, photographers and videographers are frequently present at retreats where clients are having deeply personal and intimate experiences. Those photos and videos are then used to promote the coach’s services and future retreats.

In the United States, many state laws prohibit commercial use of an individual’s image without their consent. Commercial use means use that is primarily intended for or directed toward sales or advertising.

When is written consent required?

Express written consent – a written agreement, signed by the consumer receiving the call or text, with a clear and visible disclosure that authorizes the business to send telemarketing communications – may be required depending on the location and size of the event. Examples include photographs to be posted on a website, in print marketing materials, social media marketing, magazines, television, video, brochures, digital advertising, or other advertising and marketing materials.

When is consent not required?

Generally, no consent is required to use photographs for anything that is not commercial, such as photographs of newsworthy events or events which are considered public, however, consent can be obtained as a precaution. Examples include photographs to be used solely for an internal publication or given to a news media outlet that will not otherwise be used for marketing purposes.

Photography and Video of Groups and Presenters

Generally, when taking photographs of large groups it can be difficult if not impossible to obtain express written permission to use a photograph. Instead, you may post signage or include language in a program, on an admissions ticket, or other visible place to let attendees know photographs are being taken.

The ability to “opt out” of large group photographs is favored under privacy law. To facilitate this, attendees would be responsible for notifying the photographer or event coordinator if they wish to not be photographed. The photographer or event organizer may give attendees who “opt out” wristbands or other visible markers to reflect that the attendee does not want to be photographed. Any photographs taken of attendees who indicated that they do not want to be photographed will include the marker, and the photograph should not be used. It is advisable to attempt to ask any individuals known to have been photographed to sign a consent following the photograph.

When photographing a midsized-group gathering, you may post signage or include language in a program, on an admissions ticket, or other visible place to let attendees know photographs are being taken. Where feasible, you should seek to obtain written permission, rather than rely on signage/program language, by asking attendees to sign a consent form at the entrance of the event. You may wish to use a QR code, an app, tablet, etc. to route attendees to a digital version of the consent form and obtain an electronic signature. If consent is not obtained at the entrance of a mid-sized event, it is advisable to attempt to ask any individuals known to have been photographed to sign a consent following the photograph.

When taking photographs of a small group (10 or fewer): You must obtain written consent when photographing a group of 10 or fewer attendees by asking attendees to sign a consent form.

You must obtain written consent for speakers, presenters, panelists and similar persons, regardless of event size by asking participants to sign a speaker release form.

While there is no legal requirement that attendees be provided with a copy of their signed consent form, registration consent, or speaker release, if someone asks for a copy of the form, it should be provided.

Expiration of Consent

Unless otherwise specified, consent has no expiration date. If you are a client and someone requests the use of your image, you can ask for an amendment to the consent form that enables you to retract consent under specified conditions. If the coach refuses to amend the consent form, you are within your rights to opt out.

Storage of Consent Forms

As a best practice, consent forms, registration consent and speaker release documents should be stored for future reference for a minimum of 10 years.

Future Consent

Generally speaking, consent forms typically grant permission to be photographed at the specific event for which the individual is registered. Accordingly, unless otherwise specified, it does not grant permission to take photographs of the individual at a different event for commercial purposes. Please read the terms of the consent thoroughly before signing.

You should research the laws around privacy and consent in your state and the state in which your coach and the event are located to know your rights before signing the consent form.

What should you do if someone is using your image without your consent?

First, ask the poster to take it down. If they don't immediately comply, notify them that the activity is illegal and you may opt to take them to court.

If posted to social media, you can also ask the social media site to take it down by reporting the post.

Finally, you can seek legal representation.

Deceptive design practices, also known as “dark patterns” are design tricks employed in web and mobile applications as well as in print which play on human psychology and serve to mislead consumers into making uninformed decisions or giving away personal information.

Burying terms and conditions and using hidden fine print are common dark patterns used by marketers and web designers.

Examples of dark patterns you may have seen in coaching include emails, sales pages, or social media posts with deceptive or manipulative language which makes something sound like a less nefarious thing than it is, passive-aggressively implying that anyone who doesn’t buy now is “playing small”, using countdown timers on offers that are not actually time-limited, subscriptions which are hard to cancel, or falsely claiming that an offer is almost sold out.

Some dark patterns are already illegal in specific states like Washington and California, but the FTC is expected to begin cracking down federally in the near future.

Learn more about dark patterns

Learn how to avoid dark patterns

FTC warning about dark patterns

Deceptive income claims fall under the “false advertising claims” umbrella and the FTC has a number of rulings and guidelines on the matter, largely thanks to the prevalence of deceptive income claims use in MLM marketing.

The coaching industry relies heavily on the same tactics, and as such, the same rulings apply.

According to truthinadvertising.org, the law on income representations states that one cannot make an income claim that is not representative of what a typical client will earn.

”In 2016, former FTC Chairwoman Edith Ramirez explained that:

multi-level marketers should stop presenting business opportunities as a way for individuals to quit their jobs, earn thousands of dollars a month, make career-level income, or get rich because in reality, very few participants … do have success of this type, testimonials from these rare individuals are likely to be misleading because participants generally do not realize similar incomes.”

That means that even truthful testimonials from top-earning clients are not acceptable.

View a compilation of misleading income claims derived from FTC letters, decisions, statements and guidelines, as well as DSSRC guidance and decisions.

Read the FTC rules on deceptive income claims

Social media advertising is subject to the same rules and standards as traditional advertising.

By US federal law, all advertisers are required to be truthful in the claims made in their advertising. For people who promote their businesses primarily through social media, this extends to the claims made on their sales pages and in their social media content.

By law, all companies must be able to back their claims about what their products and services can do with reliable evidence. If a business makes a claim about the health or safety benefits of a product, that claim must be based on actual scientific evidence. If a company claims that its product can cure, mitigate, or treat a disease, it must back up that claim through the accepted standards of scientific testing.

Similarly, promoted outcomes of programs and services must be both truthful and realistic.

In order to be considered truthful, all results claimed or featured in advertising (including income claims, testimonials and other endorsements) must be reflective of the typical result achieved by clients. This means that the claims must be representative of what the average person can expect to achieve from the product or service and there must be adequate proof to back up the claim that the results shown in the ad are typical.

Advertisers are not allowed to use disclaimers to avoid this criteria.

This means that coaches cannot use testimonials from their top performing clients in their advertising, even if they add disclaimers. They must use testimonials from clients who achieve the typical results.

Learn more about endorsements that don’t reflect the typical experience

Learn more about evidence-backed claims

Read full rules on endorsements

Learn more about deceptive income claims

It’s common for marketers to downplay the cons or risks of a purchase or investment while playing up the benefits.

When it comes to business opportunities, there are specific regulations around revealing potential risks involved.

Business “coaches” who sell services aimed at convincing people to start their own business are governed by the Business Opportunity Rule.

The Business Opportunity Rule requires sellers to give potential buyers all the specific details they need to understand the risks of buying a work-from-home program or any other business opportunity.

This ensures that buyers have the information they require to make informed decisions and that they are not incurring risk unbeknownst to them.

Read about the Business Opportunity Rule

Part of creating an inclusive business means learning about, understanding, having empathy for, and creating accommodations for people with disabilities.

As a small business you’re already required by law not to discriminate against people with disabilities by the Americans with Disabilities Act (ADA). Refusing to comply with making accommodations for someone with any kind of disability means that you are breaking the law and can be sued.

For example, if one of your clients has a verifiable learning disability and can’t garner the full benefits of your program from watching videos alone, and you refuse to offer the content of the course in a written format, this could be considered denying someone full access to your course materials.

Similarly, providing course materials in formats which are inaccessible to screen readers for visually impaired clients may also be considered noncompliance.

It’s your responsibility as a business owner to understand the law and your legal requirements around accessibility.

Learn about disabilities covered under ADA

Learn more about making online content accessible

The Consumer Review Fairness Act ( 2016) prohibits US businesses from including language in their contracts which are designed to prevent customers and clients from posting honest negative reviews.

According to the Act, your ability to share your honest opinions about a business’s products, services, or conduct, in any forum, including social media, is federally protected free speech.

According to the FTC, the inclusion of this kind of provision in a business contract makes it void from inception.

Online coaches often include general non-disparagement clauses in their contracts in the hopes that their clients are unaware that these are not applicable to honest reviews.

In most cases, online reviewers are protected if their statements are truthful and most states have laws that make it illegal for businesses to interfere with or manipulate online reviews. The laws are intended to prevent companies from “gaming the system” by either soliciting or paying people to write positive things about their businesses or by pressuring customers into removing or modifying negative comments.

There are also individual laws that help ensure consumers can share their honest opinions without the fear of being bullied by businesses.

One such set of laws are anti-SLAPP (Strategic Lawsuit Against Public Participation) laws.

SLAPP lawsuits attempt to silence critics through legal intimidation via frivolous lawsuits. Anti-SLAPP laws vary from state to state and protect the right of everyone to freely criticize companies, products, and services without the fear of lawsuits.

Deceptive businesses rely on you being unaware of anti-SLAPP laws in order to intimidate you into silence.

Read about laws that protect online reviewers

Learn more about the Consumer Review Fairness Act

Comparing the prices of two or more offers, also known as price anchoring, is a common and acceptable marketing tactic. This tactic becomes a deceptive business practice when one of the prices being compared is a false price, based on deceptive data, or presented with deceptive language.

For example, having a program listed on your website at a discount is perfectly acceptable if the program has actually been offered at the original price in the past.

However, if the discount price has always been the price, and the program was never offered at the originally listed price point, this is a deceptive practice and is considered false advertising.

Udemy and several other retailers recently settled lawsuits over this practice.

Another common price anchoring tactic is to talk about the “true value” of a program and tell prospects that they are getting it for a deep discount. Unless the stated “true value” of the program can be backed up by real data, this would be considered false advertising.

Learn more about fake reference prices

Certain job titles, such as psychologist, are legally protected titles which require licensure to operate under.

Some titles may be protected in certain states but not in others. It’s up to you to know whether or not you may operate a business under a specific job title according to the laws of your state.

If you are doing business online across state lines in a state where the title is protected, from a state where it is not protected, there may be legal implications in that state. It is up to you to understand the law and how it applies to these situations.

At minimum, we recommend publicly and prominently disclosing your lack of licensure.

Likewise, some coaches have credentials such as a doctoral degree in an area of study which are not related to their business. Sometimes these coaches list “Ph.D.” behind their name which gives the impression that the degree is in the same subject which they are coaching on. This is misleading to potential clients and portrays the coach as having more authority in the subject than they actually do.

Example: A narcissistic abuse recovery coach operating with Ph.D. behind their name suggests this person has a Ph.D. in psychology or related field, when really their doctoral degree is in linguistics.

We recommend publicly and prominently disclosing your credentials and not using titles if they are not related to your business.