Ever felt an urgency to purchase your desired product online just because the concerned e-commerce platform notified that ‘only 2 pieces of the product stock left’? If yes, well, you might just have been a victim of a dark pattern.
“Dark Patterns” is an abstract term referring to an array of deceptive practices that are employed in online user interface with an intent to influence the decision of the consumer, which often are not in their best interests. The term ‘dark pattern’ was first coined by Harry Bringuil, a user experience designer, to mean ‘ tricks used in websites and apps that make you do things that you did not mean to, like buying and selling up for something.’[1]
Dark Patters are generally designed to trigger the cognitive and behavioral biases of the consumers, and drive them into making an administered decision. While dark Patterns are primarily used to make unsolicited gains by getting the users to spend higher or purchase more products/services than intended, dark patterns have also been used to avail personal data of the users and to deploy malwares into the systems of the users.
Global Recognition
The negative impact of dark patterns on the decision making and psychological influence of the consumers, and the concerns around privacy of the online users have been recognized across the globe. Accordingly, the consumer and data protection authorities around the world have been actively introducing laws to address the recognized set of dark patterns.
European Union:
The EU General Data Protection Regulations[2] do not explicitly recognize ‘dark patterns’. However, the European Data Protection Board issued guidelines titled “Dark patterns in social media platform interfaces: How to recognize and avoid them”[3] recognizes 6 (six) types of dark patterns including overloading, skipping, stirring, hindering, fickle and left in the dark. Also, the guidelines elaborate on how each of the listed dark pattern infringe provisions of the EU GDPR.
Further, under Article 25(1) of the Digital Services Act[4], the European regulators explicitly ban the usage of dark patterns by online platforms by stating that “providers of online platforms shall not design, organize or operate their online interfaces in a way that deceives or manipulates the recipients of their services or in a way that otherwise materially distorts or imparts the ability of the recipients of their services to make free and informed decision”. However, although the Digital Services Act was brought into force on November 16, 2022, the restrictions in relation to the employment of dark patterns shall become applicable from February 17, 2024.
United Kingdom:
Regulation 3 of the Consumer Protection from Unfair Trading Regulations of 2008[5] provides for a list of commercial practices which are considered to be unfair and thereby, are prohibited. Paragraph 3 of Regulation 3 states that a commercial practice shall be construed as unfair if: “(a) it contravenes the requirement of professional diligence; and (b) it materially distorts or is likely to materially distort the economic behavior of the average consumer.” Further, Paragraph 4 of Regulation 3 provides that: (a) any misleading actions provided under Regulation 5; (b) misleading omissions under Regulation 6; (c) any aggressive impositions under Regulation 7; and (d) any action provided under Schedule 1, which includes a list of dark patterns, are considered as unfair and are prohibited.
Further, under the Consumer Contracts (Information Cancellation and Additional Charges) Regulations, 2013[6], the consumers have been extended with a right to cancel a distance or off-premises contract at any time within the cancellation period, without assigning any reasons, with certain exceptions. The intention behind the law is to protect the online consumers from any contract which may have terms not disclosed earlier or which have been included without the knowledge of such consumers.
United States of America:
There are multiple state specific laws in the USA that are notified for the protection of the interest of the consumers against dark patterns including the California Consumers Legal Remedies Act[7] and Consumer Fraud Act of New Jersey[8]. Nevertheless, the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted by the Senate and House of Representatives of the USA in Congress assembled in 2010 is one of the key federal laws protecting the consumers from abusive financial services practices. Further, the Restore Online Shopper’s Confidence Act of 2012[9] was notified targeting negative options plans online makes it mandatory to make a clear disclosure of material terms before receiving the consumer’s billing details for recurring charges.
In a recent development, the Federal Trade Commission, in April of 2023, proposed amendments to the Commission’s Negative Option Rule to “combat unfair or deceptive practices that include recurring charges for products or services consumer do not want and cannot cancel without undue difficulty.”[10]
Indian Context
‘Dark patterns’ have been conceded as a threat to the consumers and online users by the Indian authorities. Considering the multi-faceted impact of dark patterns on varied users and the diverse modes of deployment of dark patterns, there are more than one regulator in India attempting to regulate the use of dark patterns.
Advertising Standards Council of India:
The Advertising Standards Council of India (“ASCI”) issued a discussion document titled “Dark Patterns- The new threat to consumer protection”, in November, 2022.[11] The discussion document highlighted the kinds of dark patterns prevalent in India and the ways in which each of such patterns could be addressed.
Subsequently, the ASCI issued guidelines titled “Guidelines for Online Deceptive Design Patterns in Advertising”[12], on July 15, 2023, highlighting 4 (four) types of dark patterns i.e., drip pricing; bait and switch; false urgency; and disguised ads, along with explanations to the same. The guidelines provided that any practice of the stated dark patterns in digital advertising would be considered as a breach of Chapter 1 of the ASCI Code.
Central Consumer Protection Authority:
While the Consumer Protection Act, 2019 safeguards the consumers from any misrepresentations by the seller in relation to the quality, grade, quantity, pricing, style etc. associated with the product or services[13], the Department of Consumer Affairs explicitly issued a press note on August 02, 2023 urging the e-commerce companies and industry associations to “refrain from indulging in any design or pattern in online interfaces deceiving or manipulating consumer choices.”[14]
Further, on September 05, 2023, the Department of Consumer Affairs issued Draft Guidelines on Prevention and Regulation of Dark Patterns[15], and invited comments from the public. Ensuing the same, the Central Consumer Protection Authority, on November 30, 2023, issued and notified Guidelines for Prevention and Regulation of Dark Patterns, 2023[16] under Section 18 of the Consumer Protection Act, 2019. (“Guidelines on Dark Patterns”)
The Guidelines on Dark Patterns are applicable to[17]: (a) all the platforms offering goods and services in India; (b) advertisers; and (c) sellers[18]. The Guidelines on Dark Pattern restricts any person from engaging in a dark pattern practice. For which, the guidelines provide with a list of specific dark patterns under Annexure 1. The list of ‘Specific Dark Patterns’ provided under Annexure 1 of the Guidelines on Dark Patterns includes:
(1) False Urgency means creating or implying a sense of urgency or scarcity with an intent to mislead the consumer for immediate purchase of a product or good. Such urgency can be by way of false popularity or misrepresentation of quantity.
(2) Basket Sneaking means inclusion of additional products or items in the basket/cart of the user before checking out, such as charity or donation, without a consent of such user.
(3) Confirm Shaming means using of some content (by way of text, video or audio) which creates a sense of shame or insecurity in the minds of the consumer, and thereby, impacts the decision of such consumer.
(4) Forced Action means forcing an action on the user to buy or subscribe to unrelated or unwanted goods or services to be able to complete the intended purchase by such user. This may also include sharing of personal information of the user.
(5) Subscription trap means disallowing or making it difficult for the user from cancelling the paid subscription. This is generally done by making the cancellation process lengthy or hiding the cancellation option.
(6) Interface Interfere means manipulating the user interface to make certain portion explicitly visible to the user, and thereby, directing the actions of the users.
(7) Bait and Switch means practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
(8) Drip pricing means increasing or changing of pricing at the time of checkout by making a late disclosure of hidden costs.
(9) Disguised advertisement means masking advertisements as other content items which are redirected to an unintended page when the user clicks on such content.
(10) Nagging means disrupting or annoying the user with repeated and consistent interactions, such as form requests.
(11) Trick Questions means a deliberate use of vague language to confuse the user, and misdirect them from taking the desired action. This can also be by way of trapping the user by providing no correct answers to the question sought.
(12) SaaS billing means process of generating and collecting payments from consumers on a recurring basis by exploiting positive acquisition loops in recurring subscription to get money from the users as surreptitiously as possible.
(13) Rogue malwares means deployment of ransomware or scareware to mislead user into believing that there is a virus on their system, thereafter, convincing such user to pay for a fake malware removal tool which actually installs malware on their system.
[1] See https://www.deceptive.design/about-us
[2] EU General Data Protection Regulation (EU) 2016/679
[3] Guidelines 3/2022 on Dark patterns in social media interfaces: How to recognize and avoid them (version 1.0), by the European Data Protection Board
[4] Article 25(1) of the Digital Service Act (Regulation (EU) 2022/2065 on a Single Market for Digital Services-DSA)
[5] See https://www.legislation.gov.uk/uksi/2008/1277/regulation/3/made
[6] See https://www.legislation.gov.uk/uksi/2013/3134/contents/made
[7] California Consumers Legal Remedies Act, CAL. CIV. CODE § 1750
[8] Consumer Fraud Act, New Jersey, Stat. Ann. § 56:8-2
[9] Restore Online Shopper’s Confidence Act, 15 U.S.C. §§ 8401—8405
[10] See https://www.federalregister.gov/documents/2023/04/24/2023-07035/negative-option-rule
[11] See https://www.ascionline.in/wp-content/uploads/2022/11/dark-patterns.pdf
[12] See https://www.ascionline.in/wp-content/uploads/2023/05/Guidelines-for-Online-Deceptive-Design-Patterns-in-Advertising.pdf
[13] See Section 47 of the Consumer Protection Act, 2019
[14] See https://pib.gov.in/PressReleasePage.aspx?PRID=1945162
[15] Draft Guidelines on Prevention and Regulation of Dark Patterns, 2023
[16] Guidelines on Prevention and Regulation of Dark Patterns, 2023
[17] Section 3 of the Guidelines on Dark Patterns
[18] Under Section 2(1)(h) of the Guidelines on Dark Patterns define “Sellers” to have the “same meaning as defined under the Consumer Protection (E-Commerce) Rules, 2019”.