October 10, 2023
“Hurry, a limited period! This deal expires in 10 minutes!” Have you ever come across these phrases while shopping online? These are ‘Dark Patterns’. Dark Patterns are deceptive or manipulative techniques used by e-commerce businesses or organizations to gain an unfair advantage over consumers and mislead them. These practices can take various forms and are often designed to mislead, trick, or confuse consumers into opting for a product or service that they may or may not require at that time.
As online commerce continues to expand, dark patterns pose a growing threat to Indian consumers. These deceptive tactics can have various negative effects on consumers, including:
Addressing dark patterns is not just about protecting consumers; it's also about promoting fair and ethical practices in the digital marketplace. Recognizing the need to combat these tactics is essential to safeguard consumer rights, foster trust in online platforms, and ensure a more transparent and consumer-friendly digital landscape.
To combat dark patterns, the Department of Consumer Affairs has recently issued a press release urging online retail platforms to refrain from employing dark patterns. Additionally, they have provided specific examples of ten practices deemed as dark patterns. Subsequently, on September 7th, the Central Government introduced Draft Guidelines for the Prevention and Regulation of Dark Patterns, which includes illustrations of these ten practices. These guidelines catalogue a range of deceptive practices employed by online platforms that fall under the umbrella of dark patterns, ultimately detrimental to consumer interests.
The Consumer Affairs Department is currently inviting the public to provide feedback and suggestions regarding these guidelines for a period of 30 days, until October 5, 2023. During the development of these guidelines, consultations and dialogues were conducted with various stakeholders, including e-commerce platforms, legal firms, government representatives, and voluntary consumer organizations (VCOs). These discussions emphasized the importance of avoiding any design or layout elements in their online interfaces that could potentially deceive or manipulate consumer choices, falling into the realm of dark patterns.
Subsequently, a Task Force was established, comprising representatives from Industry Associations, ASCI, National Law Universities (NLUs), Voluntary Consumer Organizations (VCOs), and prominent e-commerce platforms, including Google, Flipkart, RIL, Amazon, Go-MMT, Swiggy, Zomato, Ola, Tata CLiQ, Facebook, Meta, and Ship Rocket. The Task Force conducted a total of five meetings, during which it solicited input for the draft policy from all its members. These inputs were then submitted to the Department of Consumer Affairs to formulate the current draft guidelines for the prevention and regulation of dark patterns, which are now open for public consultation. The proposed guidelines will be issued under section 18(2)(l) of the Consumer Protection Act 2019.
Example: Presenting false data on high demand without appropriate context. For instance, “Only 2 rooms left! 30 others are looking at this right now.”
Example: Automatic addition of paid ancillary services with a pre-ticked box or otherwise to the cart when a consumer is purchasing a product(s) and/or service(s).
Example: A platform for booking flight tickets using the phrase “I will stay unsecured,” when a user does not include insurance in their cart.
Example: Prohibiting a user from continuing with the use of the product or service for the consideration originally paid and contracted for unless they upgrade for a higher rate or fees.
Example: Websites asking a user to download their app, again and again.
Example: Designing a light-colored option for selecting “No” in response to a pop-up asking a user if they wish to make a purchase or concealing the cancellation symbol in tiny font or changing the meaning of key symbols to mean the opposite.
Example: A seller offers a quality product at a cheap price but when the consumer is about to pay/buy, the seller states that the product is no longer available and instead offers a similar-looking product but more expensive.
Example: A consumer is booking a flight, the online platform showcases the price as X at the checkout page, and when payment is being made, price Y (which is more than X) has been charged by the platform to the consumer.
Regulators in the European Union, United States, and United Kingdom have taken strict measures against dark patterns involving unfair and deceptive practices in online interfaces which were found to be detrimental to consumers. The activities which the platforms were observed to be indulging in include:
In summary, dark patterns refer to deceptive strategies employed by online businesses to manipulate consumers. These techniques have detrimental effects, including causing users to make regrettable choices, suffer financial setbacks, experience privacy violations, feel undue stress, and make unintended purchases. The Department of Consumer Affairs has demonstrated its commitment to combatting dark patterns by releasing guidelines and seeking input from the public. Furthermore, cooperative initiatives with industry players underscore the significance of adopting user-friendly digital practices. On an international scale, regulatory bodies have taken measures, underscoring the global concern surrounding dark patterns. In essence, prioritizing the mitigation of dark patterns is essential for safeguarding consumers and fostering transparency and equity in the digital realm.
