Unveiling Dark Patterns: Analysing India’s Draft Guidelines for Prevention and Regulation of Dark Patterns

21st November, 2023 - 9:49 am Categories: News & Updates 0 Comments

Introduction

Protection of consumer rights and privacy is crucial in the continually changing digital world where online transactions are becoming an everyday occurrence. The Department of Consumer Affairs (DoCA), seeing the possibility of firms using deceitful and manipulative tactics, has made a major advancement in protecting customers from the dangers of “dark patterns.” Dark patterns are strategies used in user interface and experience design to trick or coerce people into making decisions that are not in their best interests.Under Section 18 of the Consumer Protection Act of 2019, the DoCA released its Draft Guidelines for Prevention and Regulation of Dark Patterns, 2023 with the intention of preventing these dishonest practises and fostering openness in the online marketplace. This article examines these principles in great detail, highlighting both their advantages and disadvantages. It also discusses how these rules affect enterprises, consumer privacy, and the changing regulatory environment.

Dark Patterns

Anything that falls under the category of unfair commercial practises, misleading advertising, or violations of consumer rights is considered a dark pattern. In order to deceive or induce people to take activities against their will or purpose, these practises entail deceptive design patterns within UI/UX (user interface/user experience) interactions across several platforms.[i]An example of a dark pattern is “false urgency,” when an online vendor deceives the user or buyer into acting quickly by making fictitious claims of low supply, such as “hurry, only two items left!”[ii]

The Consumer Protection Act of 2019 serves as the cornerstone for the Guidelines for Prevention and Regulation of Dark Patterns, 2023. This extensive law was created to improve consumer protection in the current digital era and replace the antiquated 1986 Act.

The Department of Consumer Affairs (DoCA) is authorised under Section 18(2)(1) of the Consumer Protection Act of 2019 to establish rules and regulations aimed at protecting the interests of consumers.[iii] This clause empowers the DoCA to deal with new problems including dishonest online behaviour referred to as “dark patterns.” These rules, which were influenced by the Act, are crucial for preventing dishonest business practises, defending consumer rights, and building confidence in the online economy.

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A major example of the usage of dark patterns to force consumers to make a purchase is that of the tactics used by Amazon to lure more Prime Customers. Amazon utilises such a design feature to have customers travel through numerous screens in order to cancel their subscription and to select whether to enrol in Prime before they can finalise a transaction.[iv] This aspect of design “manipulates the user interface in ways that privilege certain specific information relative to other information.”[v] This feature of Amazon’s Prime enrolment flow uses colour and repetition to draw customers’ attention to the phrase “free shipping” and displays terms and conditions just once during the process in a tiny, easy-to-miss typeface. By placing warning indicators next to the cancel button, Amazon further incorporates this design feature into the cancellation process, “which evokes anxiety and fear of loss in consumers.”[vi] A complain has been filed by the US Federal Trade Commission in this regard.

The Impact

The Guidelines have important ramifications for online retailers and e-commerce platforms. These principles require a major change in the way companies communicate with customers, especially in the area of user interface design. E-commerce companies will have to give ethical design principles and transparency top priority, giving up on deceptive strategies like forced acts, hidden fees, and fake urgency. Following these rules not only protects companies from legal action but also gives them a chance to gain the confidence and trust of customers. Moreover, these restrictions encompass overseas enterprises aiming to penetrate the Indian market, suggesting a possible worldwide synchronisation in tackling dark patterns. The long-term viability of e-commerce platforms will depend on their ability to adjust to changing consumer expectations as they get more discriminating and knowledgeable about their digital interactions.

In this regard, the Asia Internet Coalition has opposed the move and has written a letter to the Department of Consumer Affairs.[vii] The AIC argued that internet platforms, including online ads, are already governed by current Indian regulations. They underlined that the introduction of a distinct regulatory framework would result in needless overlaps, confusion about compliance requirements, and difficulties for digital service providers in conducting business.[viii]

The Consumer Protection Act of 2019 (CPA) for e-commerce platforms and the Information Technology Act of 2000 (IT Act) for online intermediaries, among other legislation, sufficiently address regulation and prevention of dark patterns, according to the AIC. To make sure that any initiatives to control dark patterns are in line with current legal duties, they called for self-regulation.[ix]

Gaps and Shortcoming

While the steps taken by the government must be applauded, it is important to note the gaps in the draft. The draft is one of the shortest to come out by the State in recent times. It does not make an effort to define all the terms and makes vague references to the dark patterns, such that the applicability remains under question. The guidelines state that the application is wide-ranging and thus for “all platforms”, “advertisers” and “sellers”.[x] However, the definition clause limits the meaning to as defined under the Consumer Protection (E-Commerce) Rules, 2020.[xi] This disparity raises the question of the true applicability of the guidelines, and warrant changes from the State.

Dark patterns penetrate a variety of industries, including e-commerce, insurance, banking, and entertainment, each with its own set of rules. For example, the Advertising Standards Council of India (ASCI) has restrictions against misleading internet advertising,[xii]and the IRDAI for bids travel portals from defaulting to insurance sales.

The difficulty is in harmonising these industry-specific rules with general competition laws that deal with “unfair trade practises,” as the Guidelines refer to dark patterns. The Ministry has to make it clear what falls within its purview so that sectoral regulators may proactively evaluate compliance and the Guidelines can setup mechanism for customers to report activities that might be deviating from compliance procedures.

In order to effectively address dark patterns, a balanced strategy that combines industry participant self-regulation with governmental control through guidelines must be promoted. To avoid onerous rules, platforms and corporations should create their own standards, similar to the ASCI. Everyone who participated in the Ministry’s stakeholder engagement on dark patterns agreed on the significance of encouraging responsible design practises and self-regulation.[xiii]

Ideally, the Guidelines’ Annexure 1 would function as a suggestive, rather than comprehensive, inventory of dark trends, enabling customers, members of the public, or industry participants to identify any further dishonest acts via a structured reporting mechanism. In the end, industry players should be in charge of restricting or ending the use of dark patterns, allowing for self-regulation under Ministry supervision and customer input.

The Guidelines can only be applied to the 10 kinds of dark patterns that the Ministry has identified and shown. Although this is a good starting list for demonstration, we contended that it does not cover the whole range of common misleading designs and practises that are used today. Not enough attention is paid to other practises like obstruction, social proofs, psychological pricing, growth hacking, linguistic dead-ends, roach motels, and privacy zuckering.[xiv]This is a list that keeps growing and changing with dishonest practises.

In addition to the vague applicability and definitions, the penalty thresholds as well haven’t been clearly defined in the guidelines.There are no precise definitions of infractions or punishment criteria in the Guidelines. As it stands, the Consumer Protection Act of 2019 would impose severe fines on any of the dark patterns mentioned in Annexure 1. The Ministry must set precise punishment guidelines in order to guarantee the Guidelines’ equitable and uniform application. To assess the degree of harm to consumers and the scope of sanctions, the guidelines may incorporate a criterion for “intent to deceive.” Penalties should be imposed on entities who purposefully cause harm through the usage of dark patterns or use them frequently.

It is imperative that the Guidelines address the significant privacy threats posed by dark patterns. The Digital Personal Data Protection Act, 2023, which focuses primarily on data protection and does not address interfaces or designs that collect personal data, may not fully address the threat that the excessive collection of personal data without informed consent poses to consumer interests. Two strategies can be proposed to control data collecting using dark patterns.

First, other kinds of dark patterns that jeopardise customer privacy, such bait and switch, privacy labyrinth, nagging, privacy zuckering, and linguistic dead ends, may be included in the Guidelines. To help customers understand the data risks connected with these categories, Annexure 1 might provide illustrations of them. Second, the Ministry should provide guidelines and standards for platforms and organisations that gather data, instructing them on how to limit consumer data gathering and handle it openly. Inherent technological design principles such as “privacy by design,” which promote data protection, can play a significant role in reducing the dangers associated with customer data.

Conclusion

Protecting consumer rights and privacy in the digital age is made possible in large part by the Department of Consumer Affairs in India’s introduction of the Draught Guidelines for Prevention and Regulation of Dark Patterns. These recommendations try to address the concerns of dark patterns and deceptive design techniques with an emphasis on transparency and moral design.

In order to keep up with changing customer expectations, e-commerce websites and online vendors must adjust to prioritise user trust and transparency. However, the rules have several drawbacks, such as the requirement for more industry self-regulation, a more expansive definition of dark patterns, and harmonisation with authorities that are sector-specific.

Since misleading design practises transcend national boundaries, taking the global context into account is essential. In the global dialogue on responsible digital design, working with foreign partners, taking advice from reputable regulatory agencies, and looking for ways to harmonise are essential.

The key to these guidelines’ effectiveness is striking a balance between industry self-regulation and governmental control. Collaboration is needed on this journey from a variety of stakeholders, including companies, consumers, and regulators. Beyond only safeguarding its citizens, India has the power to influence global discourse on ethical digital design. It will take a team effort and an unrelenting commitment to consumer welfare in the digital era to create a more transparent and trustworthy digital economy.

Author: Puneet Shrivastava, a student of 3rd year at NUJS, case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[i]Guidelines for Prevention and Regulation of Dark Patterns, 2023

[ii] https://indianexpress.com/article/business/centre-public-feedback-draft-guidelines-regulation-dark-patterns-online-8929017/

[iii] Consumer Protection Act, 2019, §18(2)(1)

[iv] https://www.medianama.com/2023/06/223-amazon-ftc-complaint-dark-patterns/

[v]https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-takes-action-against-amazon-enrolling-consumers-amazon-prime-without-consent-sabotaging-their

[vi] https://www.medianama.com/2023/06/223-amazon-ftc-complaint-dark-patterns/

[vii]https://www.medianama.com/2023/10/223-aic-letter-doca-dark-pattern-guidelines/

[viii]Asia Internet Coalition (AIC) Industry Submission on Draft Guidelines for Prevention and Regulation of Dark Patterns, 2023

[ix]Id.

[x]Guidelines for Prevention and Regulation of Dark Patterns, 2023, §3

[xi]Guidelines for Prevention and Regulation of Dark Patterns, 2023, §2

[xii]https://www.medianama.com/2023/06/223-asci-invites-public-feedback-on-proposal-to-extend-advertising-code-to-dark-patterns/

[xiii]https://www.medianama.com/2023/06/223-summary-government-consultation-dark-patterns/

[xiv] https://internetfreedom.in/submissions-on-dark-patterns-guidelines/