India’s efforts to regulate insidious e-commerce trade practices, known as dark patterns, are a welcome step, and long overdue. The government’s consultations with sector stakeholders and consumer advocacy groups culminating with the draft guidelines to prevent and regulate dark patterns — public comments have been sought by October 5 — will, it is hoped, generate the much-needed attention this issue deserves. When the British ‘user experience researcher’ Harry Brignull coined the term dark patterns in 2010, Google (now Alphabet) was considered a benign search engine, and Facebook (now Meta) enabled long-lost connections and an unprecedented access into personal lives even when people lived oceans apart. Dark patterns of profit-making had emerged, but consumer awareness about the consequences to privacy, and time, energy, and money spends was unclear. Examples of dark patterns that have since become ubiquitous include the auto check mark for travel insurance while booking flight tickets; the mandatory requirement of entering emails or phone numbers to access e-commerce sites, which are then used to send text messages or emails that become difficult to block; or birthday wishes that nudge users to buy themselves a gift.
With greater awareness about the surplus profit-making methods of online e-commerce, governments are scrambling to regulate this sector and its trade practices. Last March, the European Data Protection Board issued guidelines on how to recognise and avoid dark patterns on social media platforms, and the United States’ Federal Trade Commission last September warned of a “rise in sophisticated dark patterns designed to trick and trap consumers”. The guidelines in India detail ways to identify and prevent false urgency, basket sneaking, confirm shaming, forced action, and a subscription trap by online platforms. An Advertising Standards Council of India report in 2021 estimated that over 50% of e-commerce sites used dark patterns to sell their products. Now, in what is truly the era of the Fourth Industrial Revolution, net technology giants have systematically collected the behavioural footprint of digital users to sell their or third party products, and amassed profits that are often larger than the Gross Domestic Products of several nations combined. India’s efforts so far to regulate the sector have been confined to preventing tax leakages and protecting the interests of brick and mortar merchants. The new-found focus on consumers, along with the wider view of the need to safeguard privacy in relation to personal data on e-commerce sites and social media platforms, should boost user confidence and ensure a safe, secure, free, and fair digital environment.
