“I needed just this, but I ended up getting much more than I anticipated. I’m not really sure how”. “I was on *blep* last night, and I got this amazing watch for just Rs. 12,475/- on their flash sale. There was only one left, and I got the last one!”. You, in most probabilities, are a victim of Dark Patterns.
Recently, the Department of Consumer Affairs published the Guidelines on Prevention and Regulation of Dark Patterns, 2023 (“Guidelines”). As per the Guidelines, Dark Patterns means any practices or deceptive design patterns using UI / UX (user interface / user experience) interactions on any platform; 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.
The Guidelines have identified thirteen such Dark Patterns and have also provided illustrations for the same, which are as follows;
- False Urgency – means creating a false sense of urgency or scarcity with the intent of tricking the consumer into buying or availing of certain goods or services, which the consumer would have otherwise not ordinarily availed of.
Illustration: Avani is shopping on a popular clothing stores app, and while viewing a certain product, she sees “Hurry! Only two items left”. Based on this information, Avani buys the product out of fear that there are only two items left.
- Basket Sneaking – when products or services are added to the basket of the customer, without their consent, which is usually without their consent.
Illustration: Rahul was looking for a ride and subsequently saw that the total amount that had to be paid at the end of the ride was Rs. 150/-. On the completion of the ride, Rahul sees his invoice and notices that he has an option of donating Rs.200 to a charity. However, Rahul did not opt for this.
- Confirm Shaming – a practice used by sellers to guilt consumers into buying or availing of goods or services out of guilt or shame. This is done with the objective of critisising the consumer for not conforming to “popular” social views.
Illustration: Sajal was getting repeated emails from an NGO that helps under privileged children. Due to the volume of emails from the NGO he decided to unsubscribe from receiving such emails. While clicking on the unsubscribe button, he was shown a prompt that said “Yes, I want to unsubscribe because I do not care about the wellbeing of under privileged children”. On seeing this prompt, he decided to not unsubscribe, as it made him feel bad.
- Forced Action – means forcing customers to do certain acts, which they ordinarily would not do.
Illustration: Javed was on a popular design software website. On clicking to download the software, he was redirected to another page which stated that he would be able to download the software only if he subscribes to their newsletter. However, this is not what Javed had wanted.
- Subscription Trap – means making the process for a consumer to unsubscribe from a service difficult. This could be in the form of making the cancellation process for paid subscription complex, lengthy or impossible. Other forms also include hiding the cancellation option for a subscription or forcing consumers to provide payment or authorisation details for free subscriptions.
Illustration: On browsing the Internet, Deepika sees an advertisement from a popular OTT platform which states that they are offering a limited free trial for 3 months to their platform. On seeing this, Deepika downloads the OTT platform, but when she tried to register for it, she was asked to provide her card details, and the prompt shown by the OTT platform in this regard was that a sum of Rs. 200/- will be deducted from her account on the completion of the free 3-month trial period.
- Interface Interference – means making a design element that manipulates the UI in ways that not only highlights certain specific information but also obscures other relevant information to misdirect the consumer to take action.
Illustration: On visiting an online newspaper site, a huge pop-up, that covered the entire screen came up on Aditya’s laptop stating that he needed to subscribe to the said website in order to be able to read the contents on it. Aditya was trying to close the pop-up, but ‘X’ was nowhere to be found. After a couple of minutes, Aditya realised that the ‘X’ was at the upper corner of the page, in a light colour.
- Bait and Switch – means the practice of advertising a particular outcome based on the user’s action, but deceptively serving an alternative outcome.
Illustration: Mohit was shopping for a pair of shoes online. When he went to checkout his cart, it showed that the shoes that he wanted, which was in stock not less than ten minutes ago, was now out of stock. However, the platform on which he was shopping on then proceeded to show him similar shoes, but which were significantly much more expensive.
- Drip Pricing – means when the price of the goods or services is not revealed upfront. However, this is not applicable to a marketplace of an e-commerce entity where the price fluctuation is due to third party sellers or factors beyond their control.
Illustration: Seema had recently bought a gym membership, and after purchasing the gym membership, she was informed that she had to buy certain gym gear from the gym in order to be able to use the gym. This however was not disclosed to Seema when she was buying her gym membership.
- Disguised Advertisement – means the practice of posing, masking advertisements as other types of content such as user generated content or news articles or false advertisements.
Illustration: Jhanvi, a popular social media influencer, recently posted a picture of her holding a bottle of hair supplements, however, it is not made known to the public that Jhanvi has in fact not used the products and has been paid by the haircare supplement brand to promote their product.
- Nagging – means the constant requests, information, options or interruptions that the consumer faces.
Illustration: Inrani visits a website, and while on the website, Indrani gets repeated pop-ups and notifications to download certain software, subscribe to their newsletter, etc.
- Trick Question – means the practice of deliberating using confusing or vague langue in order to trick or misguide consumers from taking the necessary or desired action or leading consumers to take a specific response or action.
Illustration: Geetha downloaded an application on her phone, and on signing in to the application, she got a pop up stating “Yes. I would like to like to receives updates” instead of a simple yes or no.
- SaaS Billing – is the process of generating and collecting payments from consumers on a recurring basis in a software as a service business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible.
Illustration: Varun had signed up to an OTT platform since it said that they were offering a three-month free trail. On the completion of the free trail, Varun was not informed of the same and that he would have to pay to continue using the platform. Instead, the OTT platform automatically converted the free version of the OTT platform to the paid version.
- Rogue Malwares – is the process of using ransomware or scareware to mislead or trick users into believing that there is a virus on their computer and aims to convince them to pay for fake malware removal tool that actually installs malware on their computer.
Illustration: Sagar, clicked on a link to a shopping website, and within seconds he was redirected to an advertisement, that he did not click on. Shortly after, Sagra realises that he has been locked out of his own system and is being prompted to make a payment in order to regain access to his system.
Dark Patterns and An Overlap in Regulation – The Way Forward
When the draft of the Guidelines were published, the Asia Internet Coalition published its comments to the said Guidelines. The key takeaways from the report published are as follows:
- Allow online platform to regulate themselves.
- That there is an already existing regulatory framework that tackles dark patterns such as the Consumer Protection Act, 2019, the Information Technology Act and the Digital Personal Data Protection Act, 2023.
- If the Guidelines come into force, it will create more compliance work for such platforms.
- While online platforms and intermediaries are held accountable to have officers to address grievance raised by consumer, the same should be made applicable to advertiser on such platforms.
On a reading of the above Guidelines, it can be understood that most, if not all, practices, fall within the ambit of unfair trade practices or misleading advertisements, both of which are presently covered under the Consumer Protection Act, 2019 and the allied Rules made thereunder.
While India is moving rapidly towards a more digital landscape, it is imperative that there are adequate laws in force which ensure that the interests of consumers are not hampered by such unfair and deceptive practices. The Department of Consumer Affairs has taken a positive step in identifying and clearly laying out what amounts to “Dark Patterns”, in addition to this, there should also be a robust mechanism to ensure that such practices are addressed immediately and curbed. The reason being the digital landscape waits for no one. In order to prevent consumers from getting tricked by such practices, E-commerce platforms / market places, should have a designated person to address such issues, which is presently not provided for under the draft Guidelines.
Whether one would like to admit it or not, we live in a day and age where we rely on technology to enhance and make our lives easy. With such access, we, as consumers, also have a duty to exercise our prudence to ensure that we do not fall victim to the unfair practices employed by sellers, advertisers, etc., to sell good and services to us. Further, it is no secret that various platforms track our activity and show us more of what we spend our time looking at, which in turn could have an impact on our views and our activities, therefore, it is imperative that we do our part to practice digital hygiene while using such platforms and consuming content online.