By Rohi Ray [1]
Imagine you are on an online shopping website looking for a new smartphone. You find a model that interests you, and when you click on it to learn more, you see the following:
Example:
Product Information Page
Product Price: $499
Add to Cart Button
Seems straightforward, right?
Welcome to the world of dark patterns!
Dark patterns are deceptive or manipulative design techniques used in user interfaces to encourage users to take certain actions that may not be in their best interest[2]. These patterns are often employed to maximise profits, collect user data, or push users into making decisions they might otherwise avoid[3]. While not illegal per se, dark patterns raise ethical concerns and can be considered unfair trade practices[4].
Dark patterns are designed to manipulate user behaviour by exploiting cognitive biases and psychological vulnerabilities. For example, they may use scarcity tactics, social pressure, or fear of missing out to push users into making hasty decisions. Fair trade practices typically require informed consent, which means users should have a clear understanding of what they are agreeing to when interacting with a website or application. Dark patterns often hide important information or make it difficult to opt out of certain actions, undermining informed consent. Some hotel booking websites use dark patterns by displaying messages like “Only 2 rooms left” or “7 people are looking at this hotel” to create a false sense of urgency and pressure users into booking quickly[5].
In India, the Ministry of Consumer Affairs, Food and Public Distribution has taken note of misleading advertisements and deceptive practices[6]. Consumer protection laws and regulations have been revised to address such issues, emphasising transparency and protecting consumer rights[7]. Internationally, various regulatory bodies have taken action against companies using dark patterns. For instance, the European Union has implemented the General Data Protection Regulation (GDPR), which includes provisions for transparent user consent and protection of personal data[8]. In the United States, the Federal Trade Commission (FTC) has investigated companies for deceptive practices related to dark patterns[9].
On August 2, 2023, the Department of Consumer Affairs (DoCA), issued a press note to urge e-commerce companies and industry associations to refrain from dark patterns[10]. This is in continuation to the DoCA’s press note dated June 30, 2023, which was issued to address the subject of dark patterns in online interface of platforms that are likely to deceive or manipulate consumers, which fall under the category of dark patterns[11]. The DoCA had illustrated 10 practices as dark patterns[12].
- False urgency refers to the tactic of creating a sense of urgency or scarcity to pressurize consumers into making a purchase or taking certain action[13].
- Basket sneaking is when additional products or services are added to a shopping cart, generally at the check-out page, without the consumer specifically adding these products or services to the cart[14].
- Subscription trap refers to the practice of making it easy for consumers to sign-up for a service or subscription but making it difficult to unsubscribe[15].
- Confirm shaming refers to the act of guilting consumers into opting for products or services that they would not otherwise choose. It criticises or attacks consumers for not conforming to a particular belief or viewpoint. A consumer often finds this in the ‘unsubscribe’ section of notifications[16].
- Forced action refers to forcing consumers into taking an action they wouldn’t otherwise take[17].
- Nagging refers to persistent, repetitive, and constant requests for action[18].
- Interface interference refers to the tactic of making it difficult for consumers to take specific actions, such as cancelling a subscription or deleting an account[19].
- Bait and switch refers to the practice of luring consumers with advertisements of products of certain quality or efficiency but delivering a different or poor-quality product instead[20].
- Hidden costs refer to the tactic of adding additional costs, often on the check-out or billing page when a consumer is already committed to making the purchase[21].
- Disguised ads refer to the act of influencers and celebrities posting content regarding a product or service to make it look like editorial organic content for a product or service that they have personally used or experienced and hence are endorsing it, when, in fact, they are getting paid for it. Paid advertisement, when not disclosed, is misleading to a consumer[22].
Consumer Protection Law
The Consumer Protection Act, 2019 (CPA) defines consumer rights[23]. Tricking or coercing a consumer into taking specific actions or manipulating them into making certain choices exploits a consumer’s interest and hence amounts to an unfair trade practice. Under the CPA, a consumer can seek redressal against an unfair trade practice. For regulating matters relating to violation of consumer rights, unfair trade practices, and false or misleading advertisements, which are prejudicial to the interests of consumers, the Central Government has established a Central Consumer Protection Authority (CCPA)[24]. The CCPA is entrusted with protecting and enforcing the rights of consumers[25]. The CCPA can make inquiries or investigations into violations of consumer rights or unfair trade practices, either suo moto or upon receiving a complaint.[26] Further, the CCPA can issue necessary guidelines to prevent unfair trade practices.[27] Upon investigation, if the CCPA is satisfied that consumer rights are being violated, it is authorised to pass an order to the effect of (i) withdrawal of products or services which are dangerous, hazardous, or unsafe[28]; (ii) direct reimbursement of the price paid by a consumer for such product or services[29]; and (iii) direct discontinuation of practices that are unfair and prejudicial to a consumer[30].
Under the CPA, a consumer can also file a complaint with the district commission in relation to any goods or services that follow unfair trade practices. Upon being satisfied with the claims, the district commission has the authority to pass an order to inter alia discontinue such unfair trade practices[31].
Any failure to comply with the CCPA directions can result in imprisonment for a term extending up to six months or a fine, which may extend up to Rs. 20 lakhs, or both. [32]Additionally, causing false or misleading advertisements is also a punishable offence under the CPA, with imprisonment of up to two years and a fine of up to Rs. 10 lakh[33]. For every subsequent offense, imprisonment of up to five years and a fine of up to Rs. 50 lakh may be imposed.[34]
E-Commerce Guidelines
The Consumer Protection (E-Commerce) Rules, 2020 apply to all goods and services bought or sold over a digital or electronic network[35]. These rules encompass all models of e-commerce, including marketplace and inventory models, and they address all forms of unfair trade practices. Under the E-commerce Rules, e-commerce entities are explicitly prohibited from adopting any unfair trade practices. Violations of these rules result in the same consequences as specified under the CPA (as mentioned above).
Advertising Standards Council of India
To raise awareness about dark patterns, the Advertising Standards Council of India (“ASCI”), a self-regulatory body for advertisements in India, released a discussion paper on dark patterns in November 2022[36]. According to this paper, 29% of advertisements processed by ASCI in 2021-22 pertained to disguised advertising by influencers, a kind of dark pattern[37].
Subsequently, on June 15, 2023, ASCI released Guidelines For Online Deceptive Design Patterns in Advertising[38]. These guidelines identified (i) drip pricing (similar to hidden costs as stated above)[39] (ii) bait and switch[40] (iii) false urgency[41] and (iv) disguised advertising as key dark patterns in advertising[42]. ASCI announced that these guidelines would be effective from September 1, 2023, and would apply to advertising across all modes and mediums[43].
Internationally, regulators in the EU, the US, and the UK have been taking strict action against dark patterns[44]. In the most recent case, the US Federal Trade Commission took action against Amazon Inc. for enrolling consumers in their ‘Prime’ program without their consent and for making the cancellation process complicated[45]. Under the French Data Protection Act, Apple Distribution International was fined €8 million for implementing ‘personalised ads’ settings as default without prior consent and making it difficult to change the setting through multiple steps[46]. Epic Games paid $245 million to settle charges related to using deceptive patterns in Fortnite’s payment system.[47]
The Way Forward
With consumers increasingly opting for e-commerce, it is essential for the e-commerce industry to adhere to practices that do not cause any harm to consumers. In June 2023, the Ministry of Consumer Affairs, Food and Public Distribution addressed a letter to key industry stakeholders, stating that non-adherence to best practices in the interest of consumers will result in action[48]. Consumers are now invited to report instances of dark patterns and manipulative practices on the national consumer helpline. With the government’s increased focus on building a comprehensive framework to protect consumer interests, it is imperative that online businesses in India be aware of the law and the consequences of such marketing trends and establish guidelines that discourage unfair trade practices, such as dark patterns.
[1] Rohi Ray is a passionate law student at Symbiosis Law School, Pune, pursuing a BA LLB (Hons.). His interest in law runs deep, and he is dedicated to making a positive impact in the legal field.
[2] Inside Privacy, https://www.insideprivacy.com/eu-data-protection/the-eu-stance-on-dark-patterns/, (last visited: Sept. 29, 2023)
[3] Id.
[4] Id.
[5] British Broadcasting Corporation, https://www.bbc.com/worklife/article/20191211-the-fantasy-numbers-that-make-you-buy-things-online, (last visited Sept. 29, 2023)
[6] The Consumer Protection Act, https://consumeraffairs.nic.in/acts-and-rules/consumer-protection, (last visited Sept. 29, 2023)
[7] Id.
[8] Reuters, https://www.reuters.com/legal/legalindustry/dark-patterns-new-frontier-privacy-regulation-2021-07-29/, (last visited Sept. 19, 2023)
[9] Federal Trade Commission, https://www.ftc.gov/news-events/news/press-releases/2022/09/ftc-report-shows-rise-sophisticated-dark-patterns-designed-trick-trap-consumers, (last visited Sept. 29, 2023)
[10] Press Information Bureau, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1936432, (last visited Sept. 19, 2023)
[11] Press Information Bureau, https://pib.gov.in/PressReleasePage.aspx?PRID=1936432, (last visited Sept. 19, 2023)
[12] Supra note 8
[13] Id.
[14] Id
[15] Id
[16] Id
[17] Id
[18] Supra note 8
[19] Id
[20] Id
[21] Id
[22] Id
[23] FAQs on Consumer Protection Act, https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/FAQ.pdf, (last visited Sept. 29, 2023)
[24]Press Information Bureau, https://pib.gov.in/PressReleasePage.aspx?PRID=1642422, (last visited: Sept. 29, 2023)
[25] The Consumer Protection Act, 2019, § 10, No. 35, Acts of Parliament, 2019 (India)
[26] The Consumer Protection Act, 2019, § 18, No. 35, Acts of Parliament, 2019 (India)
[27] The Consumer Protection Act, 2019, § 18, No. 35, Acts of Parliament, 2019 (India)
[28] The Consumer Protection Act, 2019, § 20, No. 35, Acts of Parliament, 2019 (India)
[29] Id.
[30] Id.
[31] The Consumer Protection Act, 2019, § 2, No. 35, Acts of Parliament, 2019 (India)
[32] The Consumer Protection Act, 2019, § 88, No. 35, Acts of Parliament, 2019 (India)
[33] The Consumer Protection Act, 2019, § 89, No. 35, Acts of Parliament, 2019 (India)
[34] Id.
[35] Department of Consumer Affairs, https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Comments_eCommerce_Rules2020.pdf, (last visited Sept. 29, 2023)
[36] Press Information Bureau, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1932105, (last visited Sept. 29, 2023)
[37] Id.
[38] Advertising Standards Council of India, https://www.ascionline.in/wp-content/uploads/2023/05/Guidelines-for-Online-Deceptive-Design-Patterns-in-Advertising.pdf, (last visited Sept. 29, 2023)
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] SCC Online, https://www.scconline.com/blog/post/2023/09/06/asci-guidelines-deceptive-design-patterns-in-digital-media-advertisements/, (last visited Sept. 29, 2023)
[44] CMS Law-Now, https://cms-lawnow.com/en/ealerts/2022/11/the-growing-regulatory-scrutiny-around-dark-patterns-and-an-update-on-consumer-law-reforms-in-the-uk, (last visited Sept. 29, 2023)
[45] Federal Trade Commission, https://www.ftc.gov/business-guidance/blog/2023/06/ftc-alleges-amazon-enrolled-people-prime-without-consent-thwarted-members-attempts-cancel, (last visited Sept. 29, 2023)
[46] CNBC, https://www.cnbc.com/2023/06/21/ftc-sues-amazon-over-deceptive-prime-sign-up-and-cancellation-process.html, (last visited Sept. 29, 2023)
[47] Epic Games, Inc. v. Apple Inc, 493 F. Supp. 3d 817
[48] Press Information Bureau, https://pib.gov.in/PressReleasePage.aspx?PRID=1955344, (last visited Sept. 29, 2023)
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