Guidelines on Dark Patterns

 The Department of Consumer Affairs making public the Draft Guidelines for Prevention and Regulation of Dark Patterns for public consultation is a timely and laudable move. Online consumers can hope to be protected from deceptive practices adopted by some e-commerce platforms once these guidelines are finalized and implemented. The notification of the guidelines by the Central Consumer Protection Authority (CCPA) follows the Department of Consumer Affairs urging e-commerce companies, industry associations, and participants in stakeholder consultation to refrain from incorporating any design or pattern in the online interface of their platform that may deceive or manipulate consumer choice and fall into the category of dark patterns. These guidelines shall apply to all platforms systematically offering goods or services in India, advertisers, and sellers. The draft guidelines have defined dark patterns as any practices or deceptive design patterns using user interface or user experience interactions on any platform; designed to mislead or trick users into doing something they originally did not intend or want to do; by subverting or impairing the consumer’s autonomy, decision-making, or choice; amounting to misleading advertisement, unfair trade practice, or violation of consumer rights. Specified dark patterns listed in the guidelines include “false urgency, which means falsely stating or implying the sense of urgency or scarcity so as to mislead a user into making an immediate purchase or taking an immediate action, which may lead to a purchase; this also includes showing false popularity of a product or service to manipulate a user’s decision; and stating that quantities of a particular product or service are more limited than they actually are. It also refers to “basket sneaking,” which means the inclusion of additional items such as products, services, and payments to charity or donations 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. The guidelines also seek to protect consumers from other dark patterns known as “forced action” used by deceptive e-commerce platforms, such as prohibiting a user from continuing with the use of a product or service for the consideration originally paid and contracted for, unless they upgrade for a higher rate or fees, forcing a user to subscribe to a newsletter in order to purchase a product, or forcing a user to download an unintended or unrelated separate app to access a service originally advertised on another app. Subscription trap is another dark pattern listed in the guidelines that refers to 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 of a free subscription; or making the instructions related to cancellation of a paid subscription ambiguous, latent, confusing, or cumbersome. Building awareness among online consumers about such deceptive practices will be crucial to the effective implementation of the guidelines. Unless consumers are aware of these dark patterns, they are not going to lodge complaints with the authorities to take action against erring e-commerce platforms. Unscrupulous advertisers and sellers will continue to dupe consumers by taking advantage of poor awareness of dark patterns. The provisions of the Consumer Protection Act, 2019, shall apply to any contravention of these guidelines. The guidelines also state that marketplace e-commerce entities, platforms, and sellers shall have the same meaning as defined under the Consumer Protection (E-Commerce) Rules, 2020. However, awareness among the majority of consumers about various provisions of the Consumer Protection Act and various rules framed under it is quite low, and bridging this gap is crucial to achieving the objective of the legal provisions. Wider dissemination of the draft guidelines among the general public in local languages by consumer protection forums can help generate awareness. With the rapid spread of the internet and the growing popularity of digital payment systems, India’s e-commerce market is projected to grow by 18% through 2025. More than 3.5 lakh grievances relating to the delivery of defective products, non-refunding of the paid amount, non-delivery or delay in delivery of products, deficiencies in services, etc., were reported by consumers on the National Consumer Helpline in 2022 with respect to e-commerce companies, which points towards consumer grievances rising as e-commerce business grows in the country. The provision for filing cases online through e-Daakhil introduced in various consumer commissions at the district, state, and national levels for speedy and hassle-free resolution of cases is a praiseworthy initiative, but expeditious disposal of complaints will be critical to building confidence among online consumers about using this online provision to lodge complaints relating to dark patterns. Consumers experiencing other forms of dark patterns not listed in the guidelines can bring those to the attention of the CCPA, and the Department of Consumer Affairs will also alert other consumers against such deceptive practices.