India's Central Consumer Protection Authority (CCPA) took a significant step on November 30th, 2023, by announcing the Guidelines for Prevention and Regulation of Dark Patterns, 2023 ('Guidelines'). By embracing these new Guidelines, India joins an exclusive group of jurisdictions, including the US and the EU, in officially addressing the evolving concept of 'Dark Patterns'.
Dark Patterns Explained
Back in 2010, Harry Brignull, a UX (user experience) designer, introduced the term 'Dark Patterns.' He shed light on these crafty manoeuvres that exploit our habit of quickly scanning through websites and apps, leading us to unwittingly act against our actual intentions.
Essentially, Dark Patterns are cleverly crafted design elements or language twists within websites and apps. Their aim? Making it challenging for users to make informed choices or manage their privacy settings.
In similar lines the Guidelines have provided a detailed and inclusive definition of 'Dark Patterns' and it has been defined as, "any practice 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".
Common Dark Pattern interfaces in the digital market
In 2022 a report by the European Commission found that 97% of the most popular websites and apps used by EU consumers deployed at least one Dark Pattern. Similarly in India, as per a study conducted by the ASCI (Advertising Standards Council of India) 29% of the ads they looked at in 2021-22 fell into the Dark Patterns category.
India's digital commerce arena hosts several interfaces employing 'Dark Patterns', often without the companies even realizing they're indulging in restricted activities. To address this concern, the CCPA has acted recently by sending notices to 26 prominent e-commerce entities in India, urging them to cease the use of 'Dark Patterns'.
Below is a list of some of the common 'Dark Pattern' interfaces in the Indian digital market -
False Urgency: In today's time online marketplaces and platforms are creating a false urgency by presenting misleading/false data on high demand without appropriate context such as - "Only 2 rooms left! 30 others are looking at this right now".
Confirm Shaming: A platform for booking flight tickets using the phrase "I will stay unsecured", when a user does not include insurance in their cart.
Basket Masking: When a user purchases a single salon service, but while checking out, a subscription to the salon service is automatically added amounts to basket masking.
Forced Action: Forcing a user to subscribe to a newsletter in order to purchase a product.
Interface Interference: A 'X' icon on the top-right corner of a pop-up screen leading to opening-up of another advertisement rather than closing it.
Implications of this new framework
These Guidelines have drawn a firm line, prohibiting the use of 'Dark Patterns' outright. Moreover, they've provided an illustrative breakdown of these patterns in Annexure I, outlining 13 distinct categories such as False Urgency, Confirm Shaming, Drip Pricing, Interface Interference, Subscription Traps, Bait and Switch, Nagging, and Disguised Advertisement.
These new Guidelines aren't just aimed at platforms that consistently provide goods or services within India; they also extend their reach to encompass advertisers and sellers across the board. Any contravention to these Guidelines would attract a penalty under the Consumer Protection Act, 2019.
With this new framework in place, it's crucial for Indian e-commerce players, including startups selling their wares online, as well as advertisers, to swiftly assess if any of their practices fall under the 'Dark Pattern' category. It's imperative to ensure that these tactics are swiftly removed from both existing and upcoming products and applications. Failing to do so would directly breach the Consumer Protection Act, 2019, as outlined in these Guidelines.
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.
