Introduction:
In the realm of consumer protection, the term "dark pattern" pertains to a deliberate and deceptive design, user interface, or marketing strategy employed by businesses or entities. The objective of such tactics is to subtly manipulate consumers, leading them to take actions that may not be in their best interest or that they may not fully comprehend. Dark patterns are frequently utilized to guide consumers into making decisions contrary to their intentions, often to the advantage of the business entity.
These patterns encompass a range of strategies, including obscuring options or rendering them less conspicuous, employing language that is intentionally ambiguous or perplexing, and creating an atmosphere that exerts pressure on consumers to make hasty decisions. Dark patterns may serve a variety of purposes, including augmenting sales figures, obtaining consumer data, or securing consent to terms and conditions without affording consumers a comprehensive understanding of the associated ramifications.
For instance, a user might sign up for a free trial of a software service with just a few clicks. But when they want to cancel the trial or subscription, they must navigate through a labyrinth of web pages, obscure links, and perhaps even confirmations that the user may not fully comprehend. The intention is to discourage or delay the user from cancelling, possibly causing them to continue paying for a service they no longer desire.
This technique leverages the fact that consumers often prioritize the ease of signing up for services, while cancelling a service is intentionally made more cumbersome to dissuade them from doing so. It's a classic example of a dark pattern designed to influence consumer behaviour in favour of the service provider.
CCPA's Guidelines for the Prevention and Regulation of Dark Patterns:
Dark patterns, by their very nature, undermine consumer autonomy and their ability to make informed choices. The Central Consumer Protection Authority (CCPA) issued comprehensive guidelines in 2023 for the prevention and regulation of "dark patterns" aimed at protecting consumers from deceptive practices, promoting transparency, and ensuring fair dealings in the digital sphere. The guidelines' application extends to all platforms systematically offering goods or services in India, advertisers, and sellers. This section clarifies the guidelines' reach and the parties they encompass.
The guidelines' application extends to all platforms systematically offering goods or services in India, advertisers, and sellers. The guidelines mention that “where a dark pattern is regulated under any other law for the time being in force or the rules or regulations made thereunder, the provisions contained in these guidelines shall be in addition to and not in derogation of, such regulation in other laws.” Emphasizing that when dark patterns are already regulated under other laws, the guidelines provide an additional layer to combat deceptive practices.
The CCPA plays a central role in interpreting and enforcing the guidelines. In case of any ambiguity or dispute in the interpretation of the guidelines, the decision of the CCPA shall be final.
Specified Dark Patterns: Manipulating Consumers' Sense of Immediacy:
● False Urgency: Deceptive Creation of Urgency
"False Urgency" employs tactics that falsely communicate a sense of urgency or scarcity, leading users to make immediate purchases or actions. This dark pattern includes showcasing a false product or service popularity and misleading users about the limited availability of a particular product or service.
For example, presenting misleading data about high demand without appropriate context or creating time-bound pressure by marketing a sale as "exclusive" for a limited time showcases false urgency.
● Basket Sneaking: Unauthorized Additions to Shopping Carts
"Basket sneaking" refers to the practice of surreptitiously including additional items (products, services, or donations) in a user's shopping cart during the checkout process without their explicit consent. This results in users paying more than the amount initially intended.
● Confirm Shaming: The Use of Fear and Guilt
"Confirm shaming" employs various means, including phrases, videos, or audio, to instil a sense of fear, shame, ridicule, or guilt in users. This psychological manipulation is intended to nudge users into making specific purchase decisions or continuing subscriptions.
● Forced Action: Compelling Users to Make Unwanted Purchases
This dark pattern, "Forced action," entails pressuring users into taking actions that necessitate additional purchases or subscriptions unrelated to their original intent. It restricts users from availing themselves of a product or service without making undesired commitments.
● Subscription Trap: Complex Cancellation and Hidden Costs
"Subscription trap" practices involve making the cancellation of paid subscriptions challenging and lengthy, hiding cancellation options, forcing users to provide payment details for availing a free subscription, and creating ambiguous, latent, confusing, or cumbersome instructions related to subscription cancellation.
● Interface Interference: Misleading Design Elements
"Interface interference" focuses on design elements that manipulate the user interface to highlight specific information while obscuring other relevant data, misleading users from taking actions they intended.
● Bait and Switch: Deceptive Outcome Variation
The "Bait and switch" dark pattern involves advertising one outcome based on the user's action but deceptively providing an alternate result, typically less favourable.
● Drip Pricing: Concealing Costs until Confirmation
"Drip pricing" includes elements that are not revealed upfront, are disclosed surreptitiously during the user's experience, or are charged post-confirmation, higher than the initially disclosed amount.
● Disguised Advertisement: Masking Ads as Other Content
This dark pattern entails disguising advertisements as different types of content, such as user-generated content, news articles, or false advertisements. It also includes misleading advertisements as defined under the Consumer Protection Act, 2019.
● Nagging: Overwhelming Users with Requests
"Nagging" creates an overload of requests, information, options, or interruptions unrelated to the user's intended purchase, leading to disruptions in their transaction.
ASCI and Consumer Affairs Department on Misleading E-commerce Practices:
While the term "Dark patterns" has only recently gained common usage, the Advertising Standards Council of India (ASCI) has been tackling these issues for some time through its existing code on misleading advertisements. The ASCI code applies to various media, including online advertising, which encompasses entities' websites, pages, and profiles.
Both the Consumer Protection Act of 2019 and the ASCI Code of 1985 hold that advertisements must refrain from misleading consumers. In fact, numerous instances of dark patterns are found to transgress these regulations, contravening the ASCI's stipulations on misleading advertisements. The code explicitly prescribes that "Advertisements shall not be so crafted as to undermine consumers' trust or exploit their limited experience or knowledge."
Notably, the Department of Consumer Affairs has recently taken action by summoning cab and two-wheeler aggregators to disclose information regarding their pricing strategies and algorithms. This move comes in response to mounting consumer dissatisfaction and concerns surrounding the operations of these services. Additionally, the Department has initiated a consultative body to address the problem of fraudulent online reviews.
As indicated in a press release by the Department of Consumer Affairs, "Given that e-commerce entails a virtual shopping experience where consumers lack the opportunity to physically inspect or assess the products, they heavily rely on reviews posted on e-commerce platforms to gauge the opinions and experiences of those users who have previously acquired the goods or services. Consequently, the prevalence of counterfeit and deceptive reviews violates the consumers' right to be informed, which is a fundamental consumer entitlement as established under the Consumer Protection Act of 2019."
Combatting Deceptive Design Practices:
The Department of Consumer Affairs took proactive steps to address the growing concern of dark patterns in e-commerce interfaces. A letter, dated 28.06.2023, had been sent by the Secretary of the Department of Consumer Affairs to reach out to e-commerce companies, Industry Associations, and stakeholders who had participated in the consultation process. The letter strongly urged these entities to refrain from incorporating dark patterns in their online interfaces that could potentially deceive or manipulate consumer choice and violate ‘consumer rights’ as enshrined under Section 2(9) of the Consumer Protection Act, 2019.
The Department of Consumer Affairs, in line with the mandate of the Consumer Protection Act, 2019, had emphasized the importance of avoiding 'unfair trade practices.' These practices included the incorporation of dark patterns in online interfaces that manipulated consumer choice and may have infringed upon the 'consumer rights' enshrined in Section 2(9) of the aforementioned act.
In response to the aforementioned concerns, a Task Force was expeditiously convened, comprising distinguished representatives from various Industry Associations, the Advertising Standards Council of India, esteemed National Law Universities, as well as NGOs. The Task Force benefited from the active participation of industry titans, including Google, Flipkart, Reliance Industries Limited (RIL), Amazon, Go-MakeMyTrip (Go-MMT), Swiggy, Zomato, Ola, Tata CLiQ, Facebook, Meta, Ship Rocket, and Go-MMT, all of whom collectively sought to address the pressing issues surrounding deceptive design practices and their potential impact on consumers.
The establishment of the Task Force emphasized the collective commitment to promoting transparent, fair, and consumer-centric practices in the digital marketplace, thereby safeguarding consumer rights and ensuring a level playing field for all stakeholders. Stay tuned for further updates on this developing story.
Conclusion:
These Guidelines represent a significant step toward securing consumer interests in the digital age. By shedding light on dark patterns and offering a regulatory framework, the CCPA takes a proactive stance in safeguarding consumer rights and fostering a transparent and fair digital marketplace. In essence, dark patterns leverage insights from behavioural psychology to subtly influence consumer choices, which may not be in alignment with their actual preferences. As such, dark patterns have garnered significant scrutiny and criticism within the spheres of both online and offline consumer interactions.
Regulators and self-regulatory bodies around the world are enhancing their surveillance efforts by investing in artificial intelligence capable of identifying dark patterns and manipulative tactics. While regulations and guidelines in this domain will continue to develop, organizations need to prioritize a culture of respecting consumers and fostering meaningful interactions to ensure a secure online environment.
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