Context: 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’.
Dark Pattern
A dark pattern is a user interface that has been crafted to trick or manipulate users into making choices that are detrimental to their interest – such as buying a more expensive product, paying more than what was initially disclosed, sharing data or making choices based on false or paid-for reviews, and so on.
Different types of Dark Patterns
| TYPE | ABOUT |
| Urgency | This tactic creates a sense of urgency or scarcity to pressure consumers into making a purchase or taking an action. |
| Tricks | Things that make users do things they did not meant to |
| Forced continuity | Give a free trail but changes to a paying scheme without warning |
| Nagging | It refers to persistent, repetitive and annoyingly constant criticism, complaints, requests for action. This is commonly seen when websites asking you to download their app, or platforms ask you to give them your phone number or sign up to their services. |
| Subscription Traps | This tactic makes it easy for consumers to sign up for a service but difficult for them to cancel it, often by hiding the cancellation option or requiring multiple steps. |
| Interface interference | This tactic involves making it difficult for consumers to take certain actions, such as canceling a subscription or deleting an account. |
| Bait and switch | This involves advertising one product or service but delivering another, often of lower quality. |
| Hidden Costs | This tactic involves hiding additional costs from consumers until they are already committed to making a purchase. |
| Disguised Ads | Disguised ads are advertisements that are designed to look like other types of content, such as news articles or user-generated content. |
| Deliberate misdirection | Focusing the user’s attention on the more expensive option, hiding the cheaper way |
| Roach Motel | The start is easy but quitting is hard |
| Obscured Pricing | Making it hard to compare the prices |
| Privacy Zuckering | Sharing more private info than you want |
| Growth hacking through spamming | You become the spammer without knowing it |
| Sneak into Basket | A random additional item appears in your basket. For example, buying insurance with airline tickets, or making a donation to a charitable cause while checking out of an e-commerce site. |
| Road-Block | A Pop-up interrupts your intended action |
| Misinformation | Trick questions and checkbox treacheryThese are usually in the form of opt-in or opt-out checkboxes that businesses use to give customers notional control over how their contact data is used These are usually in the form of opt-in or opt-out checkboxes that businesses use to give customers notional control over how their contact data is used |
| Forced Action | forcing consumers into taking an action they may not want to take, such as signing up for a service in order to access content. |
| Drip Pricing | Only a part of a product’s price is disclosed to potential buyers including elements that have to be borne by almost all customers, for example tax. |
| Confirm-shaming | Confirm-shaming uses shame to drive users to act. For example, when websites use words that induce shame or guilt to describe the options that consumers wish to exercise, such as declining to sign up for newsletters, or make a donation etc. |
Legal position of dark pattern
- Many people think that using dark patterns is just a commercial tactic and shouldn’t be regulated by the law.
- The legality of dark patterns is a complex matter as distinguishing between manipulation and fraudulent intent can be challenging.
- In majority of countries, there are no particular laws banning dark patterns. However, those who have suffered as a result of dark patterns may potentially seek justice in other laws of the country.
In 2022, Google and Facebook faced repercussions due to their cookie banners which is a dark pattern.
These companies violated EU and French regulations by making it more difficult for users to reject cookies as compared to accepting them.
Regulation of Dark pattern in India
Section 2(9)(v) of Consumer Protection Act, 2019 provides for consumer’s right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers.
Government efforts
- The Department of Consumer Affairs and the ASCI have identified the issue and recently taken certain steps to handle the same.
- Department of Consumer Affairs sent a letter on June 30, 2023, warning major Indian online marketplaces 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. Companies are being asked to stop using such tactics in the e-market.
Global efforts to regulate Dark Patterns
- The Competition and Markets Authority (CMA) of the U.K. listed different pressure-selling techniques that the CMA believes would likely violate consumer protection laws, and actions will be taken for the same.
- 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.
ADVERTISING STANDARDS COUNCIL OF INDIA (ASCI)
The Advertising Standards Council of India (ASCI) is the self-regulatory body of the Indian advertising industry was established in 1985.
Issues addressed by the ASCI
- Dishonest or misleading ads
- Indecent or offensive ads
- Harmful ads
- Ads that are unfair in competition
ASCI’s independent jury (The Consumer Complaints Council or CCC) comprises 40 eminent professionals, both from industry as well as from civil society, who review complaints on a weekly basis and provide their recommendations.
Conclusion
Regulators and self-regulators across the globe are stepping up their monitoring game with investments in artificial intelligence that can detect dark patterns and manipulative practices. While legislation and rules in this area will continue to evolve, a culture of consumer respect and meaningful engagement is what is most needed from organizations to keep the online experience happy.
