In response to growing concerns about the misuse of dark patterns in the domain of consumer protection, advertising, and e-commerce, the Central Consumer Protection Authority (‘CCPA’), empowered by s. 18 of the Consumer Protection Act, 2019 (‘the Act’), has released a draft of Guidelines for Prevention and Regulation of dark patterns (‘Draft Guidelines’). The Draft Guidelines were published on 06.09.2023 following consultation with stakeholders and are open for public review.
Scope and Applicability:
The draft guidelines apply to all platforms offering goods or services in India, including advertisers and sellers. The guidelines strictly prohibit engagement in any dark patterns. The Draft Guidelines are complementary to existing laws and not in derogation of them.
Definitions:
The draft defines terms like “Advertiser”, “Marketplace e-commerce entity,” “Platform” and “Seller” to have the same meaning as in the existing set of rules and guidelines (e.g. Consumer Protection (E-Commerce) Rules, 2020).
Dark Pattern: The Draft Guidelines further define Dark Patterns as any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; designed to mislead or trick users into taking actions they did not originally intend or want to take. These practices subvert or impair the consumer autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practices or violation of consumer rights.
Specified Dark Patterns: The Specific Draft patterns are outlined in Annexure 1 to the Draft Guidelines. These include deceptive practices like “False Urgency”, “Basket sneaking,” “Confirm shaming,” “Subscription trap,” and more. Annexure 1 defines these practices as below:
i. “False Urgency”: Falsely stating or implying a sense of urgency or scarcity to mislead a user into making an immediate purchase or taking immediate action, which may lead to a purchase.
ii. “Basket sneaking”: Including additional items such as products, services, payments to charity/donation at the time of checkout from a platform, without the consent of the user, such that the total amount payable by the user is more than the amount payable for the product(s) and/or service(s) chosen by the user.
iii. “Confirm shaming”: Using phrases, videos, audios or any other means to create a sense of fear shame ridicule or guilt in the mind of the user, to nudge the user to act in a certain way that results in the user purchasing a product or service from the platform or continuing a subscription of a service.
iv. “Forced action”: Forcing a user into taking an action that would require the user to buy any additional good(s) or subscribe or sign up for an unrelated service, in order to buy or subscribe to the product/service originally intended by the user.
v. “Subscription trap”: The process of cancelling a paid subscription impossible or a complex and lengthy process, hiding the cancellation option for a subscription; or forcing a user to provide payment details and/or authorization for auto debits for availing a free subscription; making the instructions related to cancellation of subscription ambiguous, latent, confusing, cumbersome.
vi. “Interface interference”: A design element that manipulates the user interface in ways that (a) highlights certain specific information; and (b) obscures other relevant information relative to the other information; to misdirect a user from taking an action desired by her.
vii. “Bait and switch”: The practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
viii. “Drip pricing”: A practice whereby elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; or revealing the price post-confirmation of purchase, i.e. charging an amount higher than the amount disclosed at the time of checkout; or a product or service is advertised as free without appropriate disclosure of the fact that the continuation of use requires in-app purchase; or a user is prevented from availing a service which is already paid for unless something additional is purchased.
ix. “Disguised advertisement”: A practice of posing, and masking advertisements as other types of content such as user-generated content or new articles or false advertisements.
x. “Nagging”: A dark pattern due to which users face an overload of requests, information, options, or interruptions; unrelated to the intended purchase of goods or services, which disrupts the intended transaction.
Interpretation and Contravention:
The Draft Guidelines stipulate that in cases of ambiguity or disputes regarding the interpretation of the guidelines, the decision of the CCPA shall be final. Additionally, in case of any contravention of the guidelines the provisions of the Act shall apply.
Thus, the Draft Guidelines for the Prevention and Regulation of Dark Patterns represent a substantial stride forward in strengthening consumer protection within India. The detailed definitions and illustrations of specified dark patterns establish a comprehensive framework for recognizing, preventing, and managing deceptive tactics in the realms of advertising and e-commerce.
Authored by Prashant Singh, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinion.