In recent years, as the digital landscape continues to expand, websites and apps have become integral to daily lives. However, a troubling trend has emerged alongside this growth: Dark patterns. The deceptive design practices are used to manipulate users into making decisions they might not otherwise make, such as signing up for unwanted services or sharing personal information. By exploiting human psychology and clever design, dark patterns benefit companies at the expense of consumers.

This issue is particularly pressing within India’s rapidly-growing e-commerce sector, expected to reach a market size of 350 billion by 2030. The growth is driven by increased Internet and smartphone penetration, with about 936.16 million Internet subscribers and 350 million mature online users actively engaging in transactions.

As online shopping becomes more prevalent, dark patterns are increasingly used to manipulate user decisions, exploiting the surge in digital activity.

Common dark patterns include creating a false sense of urgency to rush users into making purchases, hiding subscription cancellations deep within websites, and using confusing language to mislead users. The tactics are unethical and undermine the integrity of the design process, leading to practices that prioritise manipulation over genuine long- term user engagement. The practices fall under ‘unfair trade practices’ category under Consumer Protection Act, 2019.

Recognising the gravity of the issue, the Department of Consumer Affairs, on November 30, 2023, issued ‘Guidelines for Prevention and Regulation of Dark Patterns, 2023’ under the Consumer Protection Act, 2019, identifying 13 common dark patterns prevalent in e-com applications and websites.

Beyond specific guidelines, there have been significant developments in the international space to regulate dark patterns. In the European Union, regulations such as the Digital Services Act (DSA), General Data Protection Regulation (GDPR) and the Unfair Commercial Practices Directive (UCPD) address the concerns. In the United States, various States have introduced legislation to combat dark patterns, including the California Privacy Rights Act, the Connecticut Data Privacy Act, and Colorado Privacy Act.

Ethical challenges

Dark patterns pose a significant ethical challenge by manipulating consumer behaviour, undermining transparency and user autonomy. The tactics exploit psychological tendencies, leading users to actions that benefit firms rather than fostering fairness. By using misleading information, hidden fees, or confusing navigation, dark patterns break the expectation of honest interactions, making it hard for users to make informed choices. This not only harms users but also risks damaging the reputation of businesses, leading to lower customer loyalty, higher turnover, and negative word-of-mouth, ultimately hurting the firm’s brand and competitiveness.

Moreover, regulatory bodies are increasingly focusing on dark patterns under consumer protection laws. Companies that continue to use these practices could face fines, legal actions, and damage to reputation, which could threaten market position.

Ethical design

Addressing this needs collective effort from stakeholders. Businesses need to adopt a user-first approach by regularly reviewing and improving interfaces to remove the patterns. This focus on transparency ensures clients can easily understand and use services with clear information on subscription terms, easy options to opt out and candid instructions for cancelling services.

Educating designers and developers on ethical design practices is essential for responsible innovation. By incorporating ethics into design training and professional development, we can ensure designers consider the broader impact of the work. This approach encourages the creation of interfaces that are clear and functional.

Regulators are essential in safeguarding consumers by establishing and enforcing guidelines that promote ethical design such as mandatory disclosures, penalties for non-compliance, and regular audits. User advocacy groups complement the efforts by educating consumers about their rights, helping identify and report dark patterns and collaborating with businesses to uphold best practices. Technological solutions like browser extensions and plug-ins further empower users by detecting and warning against potential dark patterns, thereby increasing consumer awareness and confidence in safely navigating digital platforms.

Conclusion

In India’s rapidly expanding e-commerce landscape, the practices undermine consumer trust and pose significant risks to the sector. Globally, regulatory bodies are acting against such practices.

India’s initiatives, including the Consumer Protection (E-commerce) Rules, 2020, and new guidelines are crucial steps in protecting consumers from unfair practices.

By enforcing strict regulations and promoting ethical design, India is positioning itself as a global leader in fostering fair digital practices.

(The writer is Partner, Grant Thornton Bharat)

The government has sought public comments on draft guidelines for prevention and regulation of “dark patterns” which are nothing but tactics used by online players to deceive customers or manipulate their choices.

The draft guidelines, issued by the Consumer Affairs Ministry, list various deceptive practices being adopted by online platforms in the nature of dark patterns which are against the interests of consumers.

“The Ministry has sought public comments/suggestions on the draft guidelines within 30 days till October 5,” an official statement said.

According to the draft guidelines, “dark patterns” are defined as any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; 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.

Under the guidelines, around 10 dark patterns have been specified. They are: false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, disguised advertisement and nagging.

“False Urgency” means falsely stating or implying the sense of urgency or scarcity so as to mislead a user into making an immediate purchase or take an immediate action, which may lead to a purchase.

“Basket sneaking” means inclusion of 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 products and/or services chosen by the user.

“Confirm shaming” means 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, so as 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” means forcing a user into taking an action that would require the user to buy any additional goods 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” means the process of making cancellation of a paid subscription impossible or a complex and lengthy process including similar other practices.

“Interface interference” means a design element that manipulates the user interface in ways that (a) highlights certain specific information; and (b) obscures other relevant information relative to the other information; to misdirect a user from taking an action desired by him/her.

“Bait and switch” means the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.

“Drip pricing” means a practice whereby elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; and/or other such practices.

“Disguised advertisement” means a practice of posing, masking advertisements as other types of content such as user generated content or new articles or false advertisements.

Whereas “Nagging” means a dark pattern 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.

Under the draft guidelines, certain specified dark patterns have been defined and illustrated with examples to bring more clarity.

According to the Ministry, the guidelines would be made applicable to all the persons and online platforms including sellers and advertisers.

The objective of the guidelines is to identify and regulate such practices which tend to manipulate or alter consumer choices, often by using deceptive or misleading techniques or manipulated user interfaces/web designs.

“Thus, the proposed Guidelines seek to oversee such practices which are prejudicial to the consumer interests,” the statement said.

The draft guidelines have been framed after detailed deliberations with all stakeholders, including e-commerce platforms, law firms, government and voluntary consumer organisations.

The Ministry said it is committed to safeguarding consumer interests and promoting a fair and transparent marketplace, especially in the increasingly expanding and penetrative digital space.

“The proposed guidelines will further strengthen the industry and protect consumer interests,” it added.

Representational image only.
| Photo Credit: Reuters

The Centre has sought public comments on the draft guidelines for prevention and regulation of “dark patterns,” on the Internet, particularly in e-commerce platforms. The guidelines include ways to prevent and regulate false urgency, basket sneaking, confirm shaming, forced action, subscription trap and more such “dark patterns”. The public can comment on the guidelines uploaded on the Union Consumer Affairs Ministry’s website till October 5.

Dark patterns have been a prominent feature of many apps and websites over the course of the Internet’s growth, and regulators around the world have started taking steps to limit them. In the European Union, for example, users complained that Amazon’s Prime service was difficult to unsubscribe from online, as the firm would redirect users through a series of pages seeking to retain them. After talks with the European Commission, the company agreed last June to simplify the process.

What are dark patterns

The draft guidelines has 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 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.”

The some of the different types of dark patterns, defined by the Ministry, are: “false urgency” meaning falsely stating or implying the sense of urgency; “basket sneaking” meaning inclusion of additional items at the time of checkout without the consent of the user; “confirm shaming” is 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.

The other types of dark patterns are: “forced action” that forces a user into taking an action that would require the user to buy any additional goods; “subscription trap” is the process of making cancellation of a paid subscription impossible or a complex; “interface interference,” the design element that manipulates the user interface; “bait and switch” — the practice of advertising a particular outcome based on the user’s action. “Drip pricing” is another such practice whereby-elements of prices are not revealed upfront and “disguised advertisement” and nagging have been defined by the Ministry in the guidelines.

“Guidelines would be made applicable to all the persons and online platforms including sellers and advertisers,” the Ministry said in a release.

‘Enforcement might be tricky’

Renu Gupta, an advocate who has written about dark patterns and competition, commended the introduction of the draft guidelines. She cautioned that enforcement might be a tricky issue. “The real challenge lies in conclusively proving that certain practices indeed qualify as dark patterns,” Ms. Gupta said. “Consider the ‘false category,’ for instance. How will a regulator determine if a hotel or platform claiming, ‘only 2 rooms remaining – book now!’ is genuinely providing accurate data, or misleading users due to a lack of context?” Ms. Gupta explained.

She said that some dark patterns are easy to regulate, such as e-retail sites adding items to a customer’s cart without them opting for the product, while other categories like ‘disguised advertisements’ may need further clarity.