Dark Patterns' are deceptive online interface designs that are used to trick people into making decisions that are in the interests of the online business, but often at the expense of the user. Dark patterns are carefully crafted and can range from subtle omissions to outright lies, but what they all have in common is that they undermine users' intentions. The use of dark patterns has been trending in present times and this has caused consumer protection authorities across the globe to issues notifications regulating the use of dark patterns or ban their use as a whole.
On November 30, 2023, the Central Consumer Protection Authority ("CCPA") notified the Guidelines for Prevention and Regulation of Dark Patterns, 2023 ("Guidelines"). These Guidelines are applicable to (i) all platforms offering goods or services in India; (ii) to advertisers; and (iii) to sellers. The Guidelines prohibit engagement in dark patterns by any person including platforms.
The Guidelines align themselves with the discussion paper titled 'Dark Patterns – The New Threat to Consumer Protection' released in November 2022 (discussed here) by the Advertising Standards Council of India ("ASCI") and the Guidelines for Online Deceptive Design Patterns in Advertising released on June 15, 2023 (discussed here) by the ASCI.
The Guidelines define Dark Patterns 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".
While the discussion paper and the guidelines released by the ASCI described only 4 (four) dark patterns, the current Guidelines recognise the following 13 (thirteen) practices to be dark patterns:
1. False Urgency – This dark pattern refers to an act of misleading a user into believing that there is a false sense of urgency or scarcity in order to persuade them to act quickly and make a purchase. Examples of this type of behaviour include:
(i) showing false popularity of a product or service in order to
influence a user's decision; and
(ii) stating that quantities of a particular product or service are
more limited than they actually are.
2. Basket Sneaking – This dark pattern is the act of automatically adding extra items like products, services, charitable contributions or donations during the checkout process on a platform without the user's consent, resulting in an unintended increase in the total amount payable by the user.
3. Confirm Shaming – This dark pattern involves the use of a phrase, video, audio, or any other means to instil a sense of shame, guilt, or ridicule in the user to persuade them to purchase a good or service from the platform or extending their subscription to a service, mainly for profit by stifling their freedom of choice.
4. Forced Action – This dark pattern refers to compelling a user to purchase extra items, subscribe to unrelated services, or share personal information just to access or buy the initially desired product or service.
5. Subscription Trap – This dark pattern involves:
(i) rendering the cancellation of a paid subscription either
impossible or a complex and time-consuming process; or
(ii) concealing the option to cancel a subscription; or
(iii) coercing users into providing payment details or authorizing
automatic debits to access a supposedly free subscription; or
(iv) creating unclear, hidden, confusing or cumbersome instructions
related to cancelling a subscription.
6. Interface Interference – This dark pattern involves design elements that manipulate the user interface by emphasizing specific information while concealing other relevant details, aiming to mislead users from taking the intended action.
7. Bait and Switch – This dark pattern involves advertising a specific result tied to a user's action but deceptively delivering a different result instead.
8. Drip Pricing – This dark pattern involves:
(i) Withholding or 'surreptitiously' revealing price
components during the user experience; or
(ii) Disclosing a price higher than initially stated after the
purchase confirmation; or
(iii) Advertising a product or service as free without properly
indicating that ongoing use entails in-app purchases; or
(iv) Blocking a user from accessing a paid service unless
additional purchases are made.
9. Disguised Advertisement – This dark pattern involves the practice of camouflaging advertisements as various content forms, such as user-generated content, news articles, or false promotions, designed to seamlessly blend into an interface. This aims to deceive the users into clicking on them. Disguised advertisements include misleading advertisements, as defined in clause 2(28) of the Guidelines for Prevention of Misleading Advertisements and Enforcement for Misleading Advertisements, 2022. Additionally, when a seller or advertiser posts a content on a platform, they bear the responsibility of clearly disclosing that the content is an advertisement.
10. Nagging – This dark pattern refers to a practice where a user experiences continuous and bothersome interactions, such as repeated requests, information prompts, or interruptions, aimed at pushing for a transaction and achieving commercial gains, unless explicitly authorized by a user.
11. Trick Question – A 'trick question' involves intentionally using confusing or ambiguous language, such as unclear wording, double negatives, or similar tactics, to misguide or steer a user away from the intended action or to prompt a specific response or action from the consumer.
12. SaaS Billing – This dark pattern involves generating and collecting recurring payments from users within a software as a service (SaaS) business model. This process leverages positive acquisition loops within recurring subscriptions, aiming to discreetly obtain money from users in a subtle manner.
13. Rogue Malwares – This dark pattern involves employing ransomware or scareware to deceive and trick users into thinking their computer has a virus. The goal is to persuade them to purchase a phony malware removal tool, which, instead of removing malware, installs further malware on their device.
The Guidelines also provide illustrations for each of the dark patterns mentioned above. However, as various facts or circumstances may require different interpretations, the Guidelines make it clear that they are simply meant to serve as guidance and shall not be construed as an interpretation of law or as a binding opinion or decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
