The Department of Consumer Affairs and the Advertising Standards Council of India (ASCI) recently held a joint consultation with stakeholders on the menace of ‘dark patterns’. The ASCI has come up with guidelines for the same, with the central government also working towards norms against ‘dark patterns’.
What are dark patterns?
Harry Brignull, a user experience researcher in the U.K., introduced the phrase ‘dark pattern’ in 2010 to characterise deceptive strategies used to trick clients. A dark pattern refers to a design or user interface technique that is intentionally crafted to manipulate or deceive users into making certain choices or taking specific actions that may not be in their best interest. It is a deceptive practice employed to influence user behaviour in a way that benefits the company implementing it.
For example, a common dark pattern is the “sneak into basket” technique used on e-commerce websites. When a user adds an item to their shopping cart, a dark pattern may be employed by automatically adding additional items to the cart without the user’s explicit consent or clear notification. This can mislead the user into purchasing more items than they intended, potentially increasing the company’s sales but compromising the user’s autonomy and decision-making. Similarly, many of us have encountered pop-up requests for our personal information, where we have found it difficult to locate the ‘reject’ link. It is challenging for customers to decline the acquisition of their personal data if they want to continue on a website because the choice to depart or reject is so subtly positioned. By using such dark patterns, digital platforms infringe on the consumer’s right to full transparency of the services they use and control over their browsing experience.
What are the different types?
Businesses are using various techniques and deceptive patterns to downgrade the user experience to their own advantage. Some of the common practices are — creating a sense of urgency or scarcity while online shopping; confirm shaming wherein a consumer is criticised for not conforming to a particular belief; the forced action of signing up for a service to access content; advertising one product or service but delivering another, often of lower quality, known as the bait and switch technique; hidden costs where the bill is revised or costs are added when the consumer is almost certain to purchase the product; disguised advertisements of a particular product by way of depicting it as news and many more. Such deceptive patterns that manipulate consumer choice and impede their right to be well-informed constitute unfair practices that are prohibited under the Consumer Protection Act 2019.
Are dark patterns illegal?
Many believe that the use of dark patterns is a business strategy. The legality of dark patterns is a complex matter as distinguishing between manipulation and fraudulent intent can be challenging. As of now, there are no specific regulations in place in most nations against dark patterns. Nonetheless, individuals who have experienced harm as a result of dark patterns may potentially seek compensation for damages. In 2022, Google and Facebook faced repercussions due to their cookie banners. These companies violated EU and French regulations by making it more difficult for users to reject cookies as compared to accepting them.
What are global regulators saying?
Major international authorities are acting and formulating rules to address the issue. In a letter to U.K. businesses, the Competition and Markets Authority (CMA) of the U.K. lists different pressure-selling techniques that the CMA believes would likely violate consumer protection laws and for which actions will be taken. Guidelines from the European Data Protection Board were released in 2022 and offered designers and users of social media platforms practical guidance on how to spot and avoid so-called “dark patterns” in social media interfaces that are in violation of General Data Protection Regulation (GDPR) laws.
How do we address dark patterns?
The Department of Consumer Affairs and the ASCI have identified the issue and recently taken certain steps to handle the same. As of now, companies are being asked to desist from using such tactics in the e-market and on June 30, 2023, as per information by the PIB, major Indian online marketplaces received a letter from the Department of Consumer Affairs warning them against engaging in “unfair trade practices” by implementing “dark patterns” in their user interfaces to influence consumer choice and infringe on “consumer rights” as stated in Section 2(9) of the Consumer Protection Act, 2019. However, with the growing use of e- platforms, a robust legal mechanism is a demand. The Indian government should also amend existing laws to specifically address dark patterns. To do this, new rules aimed against deceptive design practices may need to be introduced along with updated consumer protection laws and data protection legislation.
G. S. Bajpai is Vice Chancellor, National Law University Delhi and Ankit serves as Assistant Professor at RGNUL, Punjab.
