India: Shedding Light On Dark Patterns

Overview of the Draft Guidelines for Prevention and Regulation of Dark Patterns

INTRODUCTION

It is the right of every consumer to be protected against unfair trade practices. A dark pattern is a kind of unfair trade practice that manipulates a consumer into doing something that they otherwise would not have done.

DEFINITION OF DARK PATTERNS

Although there is no watertight definition of dark patterns per se, the Draft Guidelines for Prevention and Regulation of Dark Patterns (hereinafter referred to as the "Draft Guidelines") define dark patternsas those practices or deceptive design patterns using user interface or user experience interactions on any platform that:

• Mislead or trick users into doing something they originally did not intend or want to do
• Subvert or impair the consumer autonomy, decision making or choice
• Amount to misleading advertisement or unfair trade practice or violation of consumer rights.

OBJECTIVE OF THE DRAFT GUIDELINES

The objective of the Draft Guidelines is to recognise and control the kinds of activities that frequently involve the use of fraudulent or misleading tactics, manipulated user interfaces, or altered web designs in an effort to influence and manipulate the choices of consumers. The Draft Guidelines aim to regulate such practices in order to protect the interests of consumers.

APPLICABILITY

The Draft Guidelines apply to:

1. All platforms that routinely offer goods and services in India
2. Advertisers
3. Sellers

SPECIFIED DARK PATTERNS

The Draft Guidelines specify the following dark patterns:

1. False urgency: False urgency is a form of dark pattern that involves falsely and wrongly, implying scarcity of particular gods so as to lure the customers into making an immediate purchase. A false popularity of the particular goods or services is showcased in order to manipulate the choices and decision making power of the customers. Further, the consumers are manipulated into believing that the quantity of the particular goods or services is more limited to than what it actually is.
   
   Examples include scenarios where consumers are manipulated into buying a product or service due to false claims that limited availability of the goods or services exists when in actuality no such limitation exists.
2. Basket sneaking: basket sneaking is a tactic that involves the addition of certain products, services or payments without the consent of the consumer, at the time of checkout, which means the total amount payable by the user more than the amount actually payable for the goods or services selected by the consumer.
   
   Example: Payment to charities or donations
   
   It is pertinent to mention that the following shall not be considered as basket sneaking:
   • Free Samples
   • Complimentary services
   • Addition of necessary fees such as delivery charges, gift wrapping, etc. disclosed at the time of purchase
3. Confirm shaming:It is a tactic that instills fear, shame, ridicule or guilt into the minds of consumers, which manipulates them into purchasing a product or service that they did not originally intend to purchase. It also results in consumers failing to discontinue a service subscription.
   
   Example: The famous language app Duolingo sends notifications to their users containing disheartened images of their mascot Duo along with emotional phrases when a user has not signed in for a lesson in a while.
4. Forced action:It is the practice of pressuring a user to purchase extra goods or sign-up for services unrelated to the products or services that the user originally intended to purchase.
   
   Example: Forcing the users to make payment for additional goods or services before allowing them to purchase the goods or services they actually wanted to purchase.
5. Subscription trap: It refers to the practice of making it difficult or time-consuming to cancel a paid subscription or hiding the cancellation option for a subscription or requiring a user to provide payment authorization for automatic debits in order to access a free subscription etc.
6. Interface interference: Interface interference is the manipulation of the user interface by a design element to highlight some specific information andconceal other significant information in order to divert a user from doing something that they would like to perform.
   
   Example: Redirecting to another web page when a user tries to close a pop-up by clicking the "x" icon on the top right corner.
7. Bait and switch: It is the practice ofadvertising a certain outcome that is favourable to the consumers but actually offering another outcome.
   
   Example: Cheap prices advertised by booking websites when in reality the actual price tends to be higher.
8. Drip pricing: It is a dark practice of hiding price aspects and adding them after the purchase of a good or service has been confirmed. Drip pricing occurs when all costs associated with a purchase are not outrightly disclosed or an amount higher than the amount revealed at the time of checkout is charged or a product or service is advertised as free without adequate disclosure of the fact that continued use requires in-app purchase or a user is prevented from using a service that has already been paid for unless something additional is purchased.
   
   Example: Applications that do not inform the user that in-app purchases are required to continue using the application after the free trial time expires.
9. Disguised advertisement:Disguised advertisements are the kind of advertisements that are deceive the users into believing that they are user-generated contents. Misleading advertisements as provided under Section 2 (1) (28) of the Consumer Protection Act, 2019 also fall within the ambit of disguised advertisements.
   
   Example: Paid promotions by influencers
   
   It is pertinent to mention that in cases of disguised advertisements, the onus of disclosing the fact that the content is an advertisement falls on the seller or the advertiser.
10. Nagging: Itincludes repeated requests and interruptions that are completely unrelated to the intended transactions.
    
    Example: Websites that continue showing pop ups for turning on notifications

REFERNCES

1. https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%202023.pdf (last visited on 17 October 2023)
2. https://www.indiacode.nic.in/bitstream/123456789/15256/1/a2019-35.pdf(last visited on 17 October 2023)
3. https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1955344(last visited on 17 October 2023)
4. https://corporate.cyrilamarchandblogs.com/2023/08/dark-patterns-an-un-fair-trade-practice/(last visited on 17 October 2023)
5. https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1932105(last visited on 17 October 2023)
6. https://www.ascionline.in/wp-content/uploads/2023/05/Guidelines-for-Online-Deceptive-Design-Patterns-in-Advertising.pdf(last visited on 17 October 2023)