New Delhi: To protect the interest of consumers, the Central Consumer Protection Authority (CCPA) has notified guidelines for the prevention and regulation of “dark patterns” or deceptive practices employed by individuals or platforms — such as e-commerce marketplaces — to trick consumers into making a decision.
The CCPA is a regulatory body set up under the Consumer Protection Act, 2019, “to promote, protect and enforce the rights of consumers as a class”.
The guidelines on dark patterns, notified Thursday, stated that these apply to all platforms offering goods or services in India, including advertisers and sellers.
“…No person, including any platform, shall engage in any dark pattern practice,” the notification added.
According to the notification, dark patterns are defined as “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 a misleading advertisement or unfair trade practice or violation of consumer rights.”
The notification comes after the draft guidelines for the Prevention and Regulation of Dark Patterns were issued in September, inviting comments, suggestions and feedback from all stakeholders.
The government had then stated that the guidelines were prepared after thorough discussions with all stakeholders, including e-commerce platforms, law firms, government and voluntary consumer organisations, as there was a general agreement that dark patterns were a serious issue and needed to be tackled proactively.
The issue of dark patterns was also highlighted by Reserve Bank of India Deputy Governor M. Rajeshwar Rao at the FIBAC 2023 conference, organised jointly by the Federation of Indian Chambers of Commerce and Industry (FICCI) and Indian Banks’ Association (IBA) in Mumbai last month.
According to Rao, dark patterns are design interfaces and tactics used to trick users into desired behaviour, such as availing high-cost short-term consumer credit masquerading as an instant loan.
“We must work hard, work smart and work together to protect the customer from these threats to retain and strengthen their trust,” he added.
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Types of dark patterns
The notified guidelines specify 13 types of dark patterns.
The first is “false urgency” or falsely implying the sense of urgency or scarcity to mislead a user into making an immediate purchase, while the second is “basket sneaking” or inclusion of additional items, such as products, services, payments to charity at the time of checkout without the consent of the user.
“Confirm shaming” or using a phrase, video, audio or any other means to create a sense of fear, shame, ridicule or guilt in the mind of the user is the third type of dark pattern, while “subscription trap” or the process of cancelling a paid subscription impossible or a complex and lengthy process is described as the fourth type.
Other specified dark patterns in the notification include, “forced action” or 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 to buy or subscribe to the product/service originally intended by the user.
“Interface interference” or a design element that manipulates the user interface in ways that highlight certain specific information, and obscures other relevant information relative to the other information to misdirect a user from taking an action as desired, is another type of dark pattern.
“Bait and switch” and “drip pricing” are other types of dark patterns. While the former is described as a practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome, the latter is a practice where elements of prices are not revealed upfront.
Others on the list include “Disguised advertisement”, a practice of posing, masking advertisements as other types of content, such as user-generated content or new articles or false advertisements; “Nagging” 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; and “Trick Question” or the deliberate use of confusing or vague language to misguide a user.
“Saas billing” and “rogue malwares” are also part of the 13 types of dark patterns.
While “saas billing” refers to the process of generating and collecting payments from consumers surreptitiously on a recurring basis, “rogue malwares” means using ransomware or scareware to mislead or trick users into believing there is a virus on their computer and aims to convince them to pay for a fake malware removal tool that installs malware on their computer.
The guidelines however, clarified that these are only to provide guidance “and shall not be construed as an interpretation of law or as a binding opinion or decision as different facts or conditions may entail different interpretations.”
(Edited by Richa Mishra)
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