On 30th November 2023, the Department of Consumer Affairs (“DCA”), notified the Guidelines for Prevention and Regulation of Dark Patterns, 2023 (“Dark Pattern Guidelines”). Earlier, in September 2023, the DCA along with the Advertising Standards Council of India (“ASCI”) had published the Draft Guidelines for Prevention and Regulation of Dark Patterns (“Draft Guidelines”), for public consultation.
The Dark Patterns Guidelines prohibit persons and platforms from engaging in dark patterns and also provide a list of practices that would be considered dark patterns under these guidelines. In addition to the dark patterns listed in the Dark Pattern Guidelines, the Central Consumer Protection Authority (“CCPA”) can specify additional dark patterns from time to time.
Key highlights of the Dark Patterns Guidelines are as follows:
- Applicability: The Dark Pattern Guidelines are applicable to all platforms systematically offering goods or services in India, advertisers, and sellers.
- Key definitions: The definitions in the Dark Patterns Guidelines are similar to the ones provided in the Draft Guidelines. Some of the key definitions are as follows:
- Dark Patterns – Any practices or deceptive design pattern using user interface or user experience interactions on any platform that is 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.
- Specified Dark Patterns– Dark patterns as listed and defined in Annexure 1 of the Dark Patterns Guidelines, such as bait and switch, drip pricing, disguised advertisement, etc., and any other dark pattern that the CCPA may specify from time to time.
- For the purposes of the Dark Pattern Guidelines, the terms “Platform” and “Seller” have the same meaning as defined under the Consumer Protection (E-Commerce) Rules, 2020. A “platform” is defined as an online interface in the form of any software including a website or a part thereof and applications including mobile applications. A “seller” as a product seller as defined under the Consumer Protection Act, 2019 and includes a service provider within its ambit.
- The term “Advertiser” has the same meaning as defined under the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. These guidelines define an advertiser as a person who designs, produces and publishes advertisements either by its own effort or by entrusting it to others to promote the sale of his goods, products or services and includes a manufacturer and service provider of such goods, products or services.
- Prohibition: No person or platform should engage in dark patterns. Any person, including any platform, shall be considered to be engaging in a dark pattern practice if it engages in any practice specified in Annexure 1 of the Dark Pattern Guidelines.
- Dark Patterns Listed in Dark Pattern Guidelines: The dark patterns that have been identified in Annexure I to these guidelines include, inter alia:
- False Urgency– Falsely stating or implying a sense of urgency or scarcity to mislead a user into making an immediate purchase or take an immediate action which may lead to a purchase, including but not limited to showing false popularity of a product or service or falsely stating that quantities are limited to create a high demand.
- Forced action – Forcing a user into taking an action that would require the user to buy additional good(s) or subscribe or sign up for an unrelated service or share personal information, in order to buy or subscribe to the product/service originally intended by the user.
- Subscription Trap– The process of making cancellation of a paid subscription impossible or a complex and lengthy process, hiding the cancellation option for a subscription, forcing a user to provide payment details and/or authorization for auto debits for availing a free subscription, or making the instructions related to cancellation of subscription ambiguous, latent, confusing, cumbersome.
- Interface Interference – A design element that manipulates the user interface in ways that highlight certain specific information and obscure other relevant information relative to the other information, to misdirect a user from taking an action desired by her.
- Bait and Switch– The practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
- Additional Dark Patterns introduced: The Dark Pattern Guidelines have expanded the list of dark patterns which were introduced in the Draft Guidelines and have introduced the following three dark patterns:
- Trick Question – Deliberate use of confusing or vague language to misguide or misdirect a user from taking desired action or leading consumer to take a specific response or action.
- SaaS Billing – The process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible.
- Rogue Malwares – Using a ransomware or scareware to mislead or trick user into believing there is a virus on their computer and aims to convince them to pay for a fake malware removal tool that actually installs malware on their computer
- Interpretation: In case of any ambiguity/dispute in the interpretation of the Dark Pattern Guidelines, the decision of the CCPA would be final.
The introduction of the Dark Pattern Guidelines is a step in the right direction as an initiative vested in consumer interest that aims to ensure greater accountability from platforms offering goods and services, advertisers, and sellers.
However, given that the Dark Pattern Guidelines have come into force with immediate effect, they do not provide enough time to online platforms, advertisers, sellers, particularly start-ups and small entities, to adapt and ensure compliance with the Dark Pattern Guidelines. Further, the broad powers of the CCPA to declare any practice as dark pattern, without providing any guidance on the factors which would be considered by the CCPA while specifying additional dark patterns, would add to the compliance burden of the relevant stakeholders who will be required to adapt their platforms and processes in real time thereby affecting ease of doing business.
Link to the Guidelines for Prevention and Regulation of Dark Patterns, 2023: https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/The%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%2C%202023.pdf
Link to our blog on the Draft Guidelines: https://www.saikrishnaassociates.com/department-of-consumer-affairs-publishes-the-draft-guidelines-for-prevention-and-regulation-of-dark-patterns-for-public-consultation/