DIGITAL TRUSTWORTHINESS: DARK PATTERNS IN INDIA

ALISHAHZ LEGAL LLP

Adv Lazim Vengattil, Associate, Alishahz Legal LLP

INTRODUCTION

With an estimated 1.13 billion websites available to the public, the online space is vast and filled with opportunities. User experience (UX) design is a crucial aspect of modern websites and applications. It encompasses the look, feel, and usability of digital interfaces. In our digitally dominated era, where choices abound at the click of a button, the design of user interfaces plays an essential role. User Experience (UX) design is meant to simplify our lives, yet not all digital practices are user-centric. The term “dark patterns,” coined by Harry Brignull in 2010, spotlighting deceptive design choices that have raised legal eyebrows in recent times.

DARK PATTERN EXPLAINED

Dark patterns are more than just design techniques they are deliberate attempts to manipulate user behaviour. They are user interfaces crafted to trick users into making decisions that may not be in their best interest. These deceptive practices manifest in various forms, veiled as complicated jargon in terms and conditions, lengthy privacy policies, pre-checked boxes leading to excessive disclosure of user information, charging hidden fees, and more.

In a press release in June 2023, the Department of Consumer Affairs (DoCA) provided further clarity on dark patterns by presenting 10 illustrative examples.

  • False Urgency: Creating a false sense of urgency to pressure users into immediate actions, such as making a purchase, by claiming limited stock availability.
  • Basket Sneaking: Adding extra items to a shopping cart without the user’s consent.
  • Subscription Traps: Making it difficult to cancel a paid subscription or hiding the cancellation option, often by creating ambiguity and complexity.
  • Confirm Shaming: Using guilt or shame to influence users’ choices, such as making them feel bad for unsubscribing from a service.
  • Forced Action: Requiring users to take an action they wouldn’t otherwise choose, like signing up for additional services to access the desired one.
  • Nagging: Nagging involves persistent, repetitive, and annoyingly constant criticism, complaints, or requests for action.
  • Interface Interference: Manipulating the user interface to highlight specific information while obscuring other relevant details to lead users to desired actions.
  • Bait and Switch: Advertising one outcome but delivering a different one upon user interaction.
  • Hidden Costs: Revealing the complete price only after the user has made a commitment, often by adding hidden fees post confirmation.
  • Disguised Ads: Presenting ads as organic content, making it appear as though influencers or celebrities endorse a product without disclosing the paid nature of the endorsement.

LAWS AND REGULATORY EFFORTS

On September 2023, the Department of Consumer Affairs, Ministry of Consumer Affairs, Food, and Public Distribution, in collaboration with the Advertising Standards Council of India (ASCI), released draft Guidelines on Prevention and Regulation of Dark Patterns. These guidelines target deceptive practices on the Internet, especially on e-commerce platforms, addressing issues like false urgency, basket sneaking, confirm shaming, forced action, and subscription traps.

In June 2022, the CCPA issued “Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.” These guidelines target misleading advertisements, and while not all dark patterns fall under advertising, they can still compromise consumer interests. These guidelines help combat dark patterns that exploit privacy concerns and employ confirm shaming and checkbox treachery.

Section 47 of the Consumer Protection Act (CPA) defines “Unfair Trade Practice,” encompassing deceptive practices aimed at promoting the sale or provision of goods and services. This includes false representations about product standards, quality, sponsorship, or affiliations, as well as misleading statements about warranties or guarantees. In the context of dark patterns, such unfair practices may involve deceptive tactics in online interfaces, manipulating users with false representations, and creating a misleading impression of product characteristics or benefits. The section highlights the importance of protecting consumers from deceptive practices that can occur in various forms, including those facilitated by dark patterns.

The Digital Personal Data Protection Act, 2023 (DPDP Act) offers a means to control dark patterns. The Act mandates online platforms to obtain clear and specific consent from users before processing their data. Individuals also have the right to withdraw consent at any time. To comply, organizations must adopt measures that align with principles of fairness, transparency, and accountability in their data collection practices.

CONCLUSION

From undermining autonomy with false reviews to causing financial losses and privacy breaches, these patterns have far-reaching consequences. Beyond individual harm, they contribute to weaker competition, diminished trust, and cumulative structural impacts. Addressing this challenge necessitates robust legal frameworks and heightened awareness. Achieving a transparent and trustworthy online environment requires collective efforts to dismantle the pervasive impact of dark patterns and empower consumers genuinely.