On 7th September 2023, the Department of Consumer Affairs (“DCA”), along with the Advertising Standards Council of India (“ASCI”), published the Draft Guidelines for Prevention and Regulation of Dark Patterns (“Draft Dark Patterns Guidelines”), for public consultation. The Draft Dark Patterns Guidelines seek to prohibit persons and platforms from engaging in dark patterns.
By way of brief background, in June 2023, the DCA conducted consultations with stakeholders and issued a letter urging online platforms/e-commerce platforms to desist from incorporating any deceptive design or pattern in the online interface of their platform that may manipulate consumer choice and constitute an unfair trade practice under the Consumer Protection Act, 2019 (“CPA”) thereby violating consumer rights. This is in continuation to the DCA’s press note dated 30th June 2023 by which consumers were invited to report instances of dark patterns and manipulative practices on the national consumer helpline. After the stakeholder consultations, a Task Force was formed, consisting of representatives from inter alia industry associations, ASCI, and e-commerce platforms, to provide inputs and recommendations on the identification and regulation of dark patterns. Based on the deliberations of the Task Force, the DCA has proposed the Draft Dark Patterns Guidelines.
As per the press release, the objective of the Draft Dark Patterns Guidelines is to identify and regulate practices “which tend to manipulate or alter consumer choices, often by using deceptive or misleading techniques or manipulated user interfaces/web designs” and seek to oversee practices that are prejudicial to consumer interests.
Key highlights of the Draft Dark Patterns Guidelines are as follows
- Key definitions: Draft Dark Patterns Guidelines seek to define the following terms:
- Dark Patterns have been defined to mean practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform, designed to mislead or trick users into doing something they originally did not intend or want.
- Specified Dark Patterns are dark patterns as listed and defined in Annexure 1 of the Draft Dark Patterns Guidelines, such as bait and switch, drip pricing, disguised advertisement, etc., and any other dark pattern that the Central Consumer Protection Authority (“CCPA”) may specify from time to time.
- Commercial gain is defined as monetary gain or financial advantage of any kind.
- User means any person who accesses or avails any computer resource of a platform.
- Advertiser has the same meaning as defined under the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 (“Misleading Ads Guidelines”). The Misleading Ads Guidelines define an advertiser as a person who designs, produces, and publishes advertisements either by his own effort or by entrusting them to others in order to promote the sale of his goods, products or services and includes a manufacturer and service provider of such goods, products or services.
- Seller has the same meaning as under the Consumer Protection (E-Commerce) Rules, 2020 (“E-Commerce Rules”). The E-Commerce Rules define a seller as a product seller as defined under the Consumer Protection Act, 2019 (“CPA”) and includes a service provider within its ambit.
- Platform has the same meaning as defined under the E-Commerce Rules, i.e., an online interface in the form of any software including a website or a part thereof and applications including mobile applications.
- Similarly, the term “Marketplace e-commerce entity” would follow the definition given under the E-Commerce Rules which define a marketplace e-commerce entity as an e-commerce entity that provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers.
- Applicability: These guidelines, if notified, would be applicable to (i) all platforms systematically offering goods or services in India, (ii) advertisers, and (iii) sellers.
- Prohibition: No person or platform should engage in dark patterns. A person/platform would be considered to be engaged in dark patterns if it engages in any of the 10 practices identified in Annexure 1 of the Draft Dark Patterns Guidelines. The dark patterns identified in these draft guidelines are as follows:
- 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.
- 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. However, this excludes the addition of free samples or providing complimentary services or the addition of necessary fees (such as delivery charges, additional taxes etc.) disclosed at the time of purchase.
- Confirm Shaming – Using a phrase, video, audio or any other means to create a sense of fear or shame or 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.
- 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, 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.
- Drip Pricing – The practice of not revealing elements of prices upfront or revealing surreptitiously within the user experience, revealing the price post-confirmation of purchase, advertising a product or service as free without appropriate disclosure regarding in-app purchase, or preventing a user from availing a service which is already paid for unless something additional is purchased.
- Disguised advertisement – The practice of posing, masking advertisements as other types of content such as user-generated content or new articles or false advertisements. The term ‘disguised advertisement’ includes misleading advertisements as defined under the CPA and governed by the Misleading Ads Guidelines. The responsibility of making the disclosure that content posted by a seller or an advertiser on a platform is an advertisement shall be on such seller or advertiser.
- Nagging – Overloading users with requests, information, options, or interruptions, unrelated to the intended purchase of goods or services, which disrupts the intended transaction.
- Contravention: Once notified, the CPA would apply to contravention of these Draft Dark Patterns Guidelines, and the decision of the CCPA would be final in case of any ambiguity/dispute in the interpretation of these Draft Dark Patterns Guidelines
The Draft Dark Patterns Guidelines, seem to take inspiration from the EU “Guidelines 3/2022 on Dark patterns in social media platform interfaces: How to recognise and avoid them” and the “Digital Services Act” (“DSA”) and are a significant step toward creating a fair and transparent online marketplace in India. The Draft Dark Patterns Guidelines, if notified in the current form, will be issued under the CPA and any contravention of these draft guidelines will be subject to the provisions of the CPA. Furthermore, the Draft Dark Patterns Guidelines, once notified, will apply in addition to any other laws that regulate dark patterns. Currently, there are no laws that per se regulate dark patterns in India. Notably, the ASCI had in June 2023 issued guidelines on dark patterns, namely the Guidelines for Online Deceptive Design Patterns in Advertising.
Although the Draft Dark Patterns Guidelines are aimed at protecting consumers from unfair and deceptive practices, some of the dark patterns listed in the Draft Dark Patterns Guidelines have been defined broadly and will require careful consideration to ensure that it’s not applied widely or indiscriminately. Further, while the CCPA has been granted powers to take action in cases of contravention, these draft guidelines do not explicitly provide for a grievance redressal mechanism of the platform that may be approached by the consumers before the matter is taken up by the CCPA.
While the Draft Dark Patterns Guidelines provide an indication of the government’s intent to regulate dark patterns, it remains to be seen whether these draft guidelines will be effective in practice, if implemented in their current form.
Draft Guidelines for Prevention and Regulation of Dark Patterns – https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%202023.pdf