In the era of unaccounted digital dependency, privacy and consumer rights are frequently at stake and mostly infringed. The “non-restraintment” upon the deceptive and misleading design techniques and advertisements which often manipulate the decision-making or choice of individuals and also outrightly violate the consumer rights is categorised under “dark patterns” which has been an alarming phenomenon worldwide. To put it simply, dark patterns are user interfaces that are designed to trick, encourage, and sometimes compel prospective consumers into undertaking acts by subverting or impairing the consumer autonomy against their bona fide consent which amounts to unfair trade practice as defined under Section 2(47) of the Consumer Protection Act, 20191.
While consciously acknowledging the cascading effect and the threat of such patterns on consumer rights, the Central Consumer Protection Authority (CCPA), in exercise of the powers conferred under Section 18 of the Consumer Protection Act, 20192 has issued restrictive Guidelines for the Prevention and Regulation of Dark Patterns, 20233. These Guidelines have applicability to all the platforms systematically offering goods and services in the country. The Guidelines are not in derogation of other laws and categorically explicate that in case any ambiguity arises while interpreting or implementation at ground level, the decision of the CCPA shall be binding and final. It is imperative to mention that the issues pertaining to dark patterns were also highlighted by the Governor of Reserve Bank of India, M. Rajeshwar Rao at FIBAC Conference. The underlying objective to curb and control dark patterns is to safeguard the rights of the consumers.
Defining and detailing dark patterns as per the CCPA
While upholding the legislative intent of the Consumer Protection Act, 20194 and prioritising the rights of a consumer as enshrined under Section 2(9) of the said Act, the CCPA, has through a welcome move shielded the end-users on the digital platforms from the unscrupulous and misleading advertisements of the service providers. Furthermore, as the Consumer Protection (E-Commerce) Rules, 20205 are applicable to all the e-commerce entities and platforms, the said Rules will play a key role in restricting the dark patterns from being further implemented. It is imperative to mention that the Guidelines for Prevention and Regulation of Dark Patterns, 2023 are ancillary to the already established framework of the consumer legislation which will play a paramount role in countervailing and curbing the dark patterns, furthermore, the Digital Personal Data Protection Act, 20236 (DPDA) also has a significant part to play in curbing dark patterns. The objective of safeguarding the interest of end-users and obtaining lawful consent before processing final data is corresponding and indistinguishable in the said statutes i.e. the Consumer Protection Act, 2019 and the Digital Personal Data Protection Act, 2023 respectively.
The Gazette Notification dated 30-11-20237 which provides Guidelines for Prevention and Regulation of Dark Patterns, 2023, elucidates and brings under its ambit the following dark patterns—
“False urgency” which means raising a false alarm or implying a sense of urgency or scarcity in order to mislead a consumer to take an immediate decision of purchase. The misrepresentation of product or service availability is prevalent on many platforms. Illustrating the scenario of the aviation industry, the booking websites may assert the availability of only a few seats on a particular flight, creating a false sense of scarcity. Whereas, the reality may be contradictory, but the deceptive interface aims to build pressure among users with an objective of making the consumers impulsive about making the booking decision. This tactic compels the users to act quickly based on the misrepresented urgency. While competitiveness in the market is essential for survival and growth, it should not come at the expense of consumer trust.
“Basket sneaking” which simply implies inclusion of additional and unwarranted products or payments (forced charity or donations) which may be added without the consent and free will of consumers to the final invoice with the products chosen by the consumer. The act of unwarrantedly including insignificant or significant amounts with the final invoice of chosen services or goods is categorised under dark patterns.
“Confirm shaming” means using a phrase, video, audio, or any other means to create a sense of fear or shame or ridicule or guilt in the mind of the user, so as to nudge the user to act in a certain way that results in the user purchasing a product or service from the platform or continuing a subscription of a service.
“Forced action” signifies forcing a user into taking an action that would require the user to buy any additional good(s) or subscribe or sign up for an unrelated service, in order to buy or subscribe to the product/service originally intended by the user.
“Subscription trap” means the process of making cancellation of a paid subscription impossible or a complex and lengthy process including similar other practices.
“Interface interference” meansâ€¯a design element that manipulates the user interface in ways that: (a) highlights certain specific information; and (b) obscures other relevant information relative to the other information; to misdirect a user from taking an action desired by her.
“Bait and switch” signify the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
“Drip pricing” means a practice whereby elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; and/or other such practices.
“Disguised advertisement” means a practice of posing, and masking advertisements as other types of content such as user-generated content or new articles or false advertisements.
“Nagging” means a dark pattern due to which users face an overload of requests, information, options, or interruptions; unrelated to the intended purchase of goods or services, which disrupts the intended transaction.
“Trick question” 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 the consumer to take a specific response or action.
“SaaS billing” 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” means using 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.
The Guidelines for Prevention and Regulation of Dark Patterns, 2023, issued by the Central Consumer Protection Authority, in exercise of the powers conferred under Section 18 of the Consumer Protection Act, 2019 is unarguably a deterrent for advertisers and e-commerce entities from adopting the unfair and unjustified trade practices to promote sales through unjust means. The restriction of dark patterns upholds the legislative intent of the Consumer Protection Act, 2019. The only drawback in the said Guidelines is that it is directory in nature and the non-inclusion of any compensatory and penal provision might not attract an overwhelming impact on the compliance and adherence ratio. In order to ensure mass participation from consumers and absolute restriction upon dark patterns from the digital service providers, the introduction of explicit provisions of compensation for the aggrieved consumers and penalty for implementation of dark patterns upon service providers must come into force.
†Associate at PSP Legal. Author can be reached at email@example.com.