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Reshaping India's Dark Pattern Guidelines

Towards a better Digital Landscape

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Surya Pratap Singh Naruka
Surya Pratap Singh Naruka

Published on: Feb 7, 2024

Shweta Khandelwal
Shweta Khandelwal

Updated on: Feb 14, 2024

(16 Ratings)
1785

Introduction

Has it ever happened to you that you are booking a flight, the online platform showcases the price as X at the checkout page, and when payment is being made, price Y (which is more than X) has been charged by the platform to the consumer? Or a Website is asking the user to download their app, again and again? Or no notification is given to the user when free trial of a specific software is converted to paid? Or forcing a user to subscribe to a newsletter in order to purchase a product?

In the world of internet, they are referred as ‘Dark Pattern Practices’.

The first serious thought on Dark Patterns was given by Advertising Standards Council of India (ASCI) by releasing a Discussion Document in November 2022 titled ‘Dark Patterns- The New Threat to Consumer Protection’ to create awareness about dark patterns. One of the alarming aspects of this document is the statistics that “29% of ads processed by ASCI in 2021-22 pertained to disguised ads by influencers, a kind of dark pattern”. Here are the top violator industries:

Crypto Personal Care Fashion E-commerce F&B Services Mobile Apps Finance
24.16% 23.2% 16.3% 8.4% 8% 3.4% 2.8% 2.6%

On November 30, 2023, the Central Consumer Protection Authority, a regulatory body established under Section 10 of Consumer Protection Act, 2019 to “regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers and to promote, protect and enforce the rights of consumers as a class” has notified guidelines titled ‘Guidelines for Prevention and Regulation of Dark Patterns, 2023’. These guidelines aim to curb deceptive design practices termed as ‘dark patterns’ across various platforms offering goods or services in India.

Tracing the Evolution of Guidelines

Timeline Name of Legislation Key Pointers
2019 Consumer Protection Act Section 2(47) provides for definition of ‘Unfair Trade Practices’, but lacks specific mention of dark patterns.
2019 IRDAI Circular Prohibited travel portals from automatically adding and selling insurance using pre-checked boxes, which is an example of a dark pattern.
2020 Consumer Protection (E-Commerce) Rules Provided that no e-commerce entity shall adopt any unfair trade practice.
2021 Consumer Protection (Direct Selling) Rules Holds an entity accountable for any misleading, deceptive or unfair trade practices in direct selling.
2022 Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements Tried to address the area of deceptive practices in a piece-meal manner approach, but missed to encompass the full spectrum of dark patterns.
2023 ASCI’s Guidelines for Online Deceptive Design Patterns in Advertising Applicable on digital advertising. Specified 04 kinds of dark patterns such as: Drip Pricing, Bait & Switch, False Urgency, and Disguised Ads.
2023 Guidelines for Prevention and Regulation of Dark Patterns Current guidelines as notified on November 30, 2023, and as discussed in this article.

Understanding the Guidelines

  1. Dark Patterns are defined as any practices or deceptive design pattern using user interface or user experience interactions on any platform that is designed to mislead or trick users to do something they originally did not intend or want to do, by subverting or impairing the consumer autonomy, decision making or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer rights”. This definition forms the crux of the guidelines, encapsulating the essence of practices targeted for prevention and regulation.
  2. The said guidelines represent a significant development in consumer protection domain, addressing the burgeoning concerns surrounding deceptive design patterns on digital platforms.
  3. These guidelines prohibit any person, including any platform systematically offering goods or services in India, advertiser and seller from engaging in any dark pattern practices as specified in Annexure- 1 or maybe specified by Central Consumer Protection Authority from time to time.

Definitions taken from other guidelines and rules

Clause Term Definition
Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022
Clause 2(b) Advertiser A person who designs, produces and publishes advertisements either by his own effort or by entrusting it to others in order to promote the sale of his goods, products or services and includes a manufacturer and service provider of such goods, products or services.
Consumer Protection (E-Commerce) Rules, 2020
Clause 2(f) Marketplace E-commerce Entity It is an e-commerce entity which provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers.
Clause 2(g) Platform It is an online interface in the form of any software including a website or a part thereof and applications including mobile applications.
Clause 2(h) Seller It is defined as the Product Seller as defined in Section 2(37) of the Act and shall include any service provider. The Act provides that a Product Seller, concerning a product, is someone involved in its import, sale, distribution, leasing, installation, packaging, labelling, marketing, repair, maintenance, or any activity placing the product for commercial use. This includes manufacturers selling the product and service providers. However, it excludes sellers of immovable property, providers of professional services where the product is incidental, and certain financial actors or lessors without adequate opportunity to inspect the product for defects.

Specified Dark Patterns

Further, Central Consumer Protection Authority has specified (not an exhaustive list) a total of 13 ‘Specified Dark Patterns’ in the Annexure-1 of the guidelines as defined below:

Dark Pattern Type Definition
False Urgency This tactic creates a sense of urgency or scarcity to pressure consumers into making a purchase or taking an action.
Basket Sneaking Websites or apps use dark patterns to add additional products or services to the shopping cart without user consent.
Confirm Shaming It involves guilt as a way to make consumers adhere. It criticizes or attack consumers for not conforming to a particular belief or viewpoint.
Forced Action This involves forcing consumers into taking an action they may not want to take, such as signing up for a service in order to access content.
Subscription Trap This tactic makes it easy for consumers to sign up for a service but difficult for them to cancel it, often by hiding the cancellation option or requiring multiple steps.
Interface Interference This tactic involves making it difficult for consumers to take certain actions, such as cancelling a subscription or deleting an account.
Bait & Switch It means the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
Drip Pricing This tactic involves hiding additional costs from consumers until they are already committed to making a purchase.
Disguised Advertisement Disguised ads are advertisements that are designed to look like other types of content, such as news articles or user-generated content.
Nagging It refers to persistent, repetitive and annoyingly constant criticism, complaints, requests for action.
Trick Question It means the deliberate use of confusing or vague language like confusing wording, double negatives, or other similar tricks, in order to misguide or misdirect a user from taking desired action or leading consumer to take a specific response or action.
SaaS Billing It refers to the process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible.
Rogue Malwares It means using a ransomware or scareware to mislead or trick user into believing there is a virus on their computer and aims to convince them to pay for a fake malware removal tool that actually installs malware on their computer.

Concerns & Suggestion Overlooked During Consultation Process

Stakeholder Concern/Suggestion
Asia Internet Coalition (AIC)
  • Flexible self-regulatory framework ensures that online, e-commerce and digital advertising services will regulate dark patterns in harmony with existing laws.
  • Buffer period between the publication and implementation of the guidelines
  • Obligations needs to be extended to Advertisers under the CP Act, 2019, so that consumers grievances against advertisers can be heard and accordingly disposed of.
  • Disguised Advertisements, a type of dark pattern, includes endorsements from influencers and celebrities as well. However, the applicability clause of Guidelines is extended to advertisers, platforms and sellers only. Therefore, it is necessary to incorporate ‘endorser’ definition which would enable individuals to hold endorsers liable for their use of dark patterns
  • The usage of word ‘platform’ in Guidelines also includes intermediaries which are regulated under IT Act, 2000 and safe harbour protection of Section 79. However, intermediaries under these Guidelines doesn’t have such protection unlike E-commerce Rules, 2020.
  • Clause 4 of Guidelines holds online intermediaries responsible for dark patterns deployed through third party content, including where they merely provide hosting services. It will lead intermediaries to review and select the information that can be viewed by a user through its platform. As a result, intermediaries will lose their safe harbour protection under Section 79 of the IT Act.
  • Proviso clause pertaining to such exemption needs to be incorporated in Dark Patterns Guidelines, 2023, to bring it in tune with E-Commerce Rules, 2020
Khaitan & Co. and Internet Freedom Foundation (IFF)
  • Guidelines provides that whenever a person indulges in any of the specified practices, it will be ‘considered’ to have been engaged in the practice of dark pattern, and therefore creates a presumption of guilt and shift the burden of proof to businesses. If ‘considered’ implies presumption, then the onus of proving innocence falls on businesses using dark pattern practices.
  • Use of dark patterns is prohibited under Clause 4, but no penalty has been prescribed for its contravention in the Guidelines
  • Element of ‘intention to deceive’ to assess the gravity of consumer harm needs to be incorporated in the Guidelines. Further, magnitude of the penalty can vary as per the size of the entity.
Internet Freedom Foundation (IFF)
  • Since, the Guidelines do not specify the recourse available to aggrieved consumer to file complaints against dark patterns, the usage of Grievances Against Misleading Advertisement (GAMA) Portal can be expanded and consumers aggrieved by the use of dark patterns can be directed to the said portal for expedited and easy redressal.
  • DoCA to clearly delineate its scope and jurisdiction in order to prevent the possibility of jurisdictional deadlocks by various domain regulators such as the Competition Commission of India (CCI), the Data Protection Board (DPB) or the Ministry of Electronics and Information Technology (MeitY) and entity getting penalized twice under general and sectoral laws.

Conclusion

This article is an effort by authors to dig deep into the realm of Dark Pattern Practices and legislative provision around it. Further, this work is an effort to explain the evolution, guidelines and lacunas of recently notified guidelines in light of publicly available resources. This article tries to give readers a detailed analysis of pros and cons of Guidelines for Prevention and Regulation of Dark Pattern, 2023, so that reader can devise an independent, comparative and a logical opinion.

Disclaimer

The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content of this article is not intended to create and receipt of it does not constitute any relationship. Readers should not act upon this information without seeking professional legal counsel.

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