What Are Dark Patterns And How The Government Plans To Curb Them?

The government has released draft guidelines for dark patterns or tricky design tricks used in digital or online interfaces.

Dark patterns aim to deceive users or take away their control, making them do things they don't want to using disguised advertisements and showing false popularity of products, among other such practices.

Several examples of dark patterns include false urgency, basket sneaking, and nagging, according to Ajay Garg, head of the digital group at Anand and Anand, an IPR law firm.

According to Sweta Rajan, partner at ELP, dark patterns may mislead customers through advertising or unfair trade practices, violating "consumer rights".

• False urgency: It is creating a false image that a product is in limited supply and a customer would be missing out on a big opportunity by not buying it or taking the deal.

• Basket Sneaking: This refers to adding products to a customer’s cart before checkout without obtaining their consent. According to Garg, examples of basket sneaking are mostly seen in automatic addition of donations, charities and subscription to newsletters. 

• Nagging: It's bombarding a user with requests or interruptions that aren't related to why they're using a platform. This can include platforms asking you to download their mobile app even if you keep closing the pop-up.

• Confirm Shaming: This occurs when a platform uses guilt to make you buy something or keep a subscription.

• Forced Action: When a platform makes you do extra things, like buying another product, to get what you originally wanted.

• Subscription Trap: Makes canceling a paid subscription hard or hides the cancel option, or requires payment info for a free trial.

• Interface Interference: Changes the design to manipulate your actions.

• Bait and Switch: Promises one thing but delivers something else.

• Drip Pricing: When a platform doesn't show the full price upfront or reveals it after you confirm the purchase. It covers advertising something as free but making you buy more.

• Disguised Advertisement: Hides ads as different types of content--like pretending an ad is a user's post or a news article.

After consultations with e-commerce platforms, law firms, government representatives, and consumer protection organizations, the Department of Consumer Affairs released draft guidelines to prevent and regulate dark patterns this year.

"Ensuring transparency, deployment of fair practices and upholding consumer autonomy to make free and informed choices, are some of the principles that form the core of the draft guidelines", said Avisha Gupta, partner at Luthra and Luthra.

According to the draft:

• The guidelines are applicable to a wide range of entities, including digital and online platforms such as mobile apps and websites, as well as advertisers and sellers operating in the digital space.

• They explicitly prohibit dark patterns cited earlier. The government reserves the right to update the list as necessary.

• Engaging in dark patterns can result in penalties under the Consumer Protection Act 2019.

The effectiveness of the guidelines, however, will depend on their robust enforcement, as per Anupam Shukla, partner at Pioneer Legal. There may be difficulty in enforcing the guidelines against platforms that are not based in India but offer goods or services in India, he said.

Karun Mehta, partner at Khaitan & Co said not all instances which persuade a customer or internet user are prejudicial to their interest.

While the experts call the draft rules to be a step forward, they suggested a more holistic approach encompassing other regulations to deal with dark patterns.

"If we are viewing the regulated space, we need to understand the nuance of dark patterns in combination with the existing IT Act, 2000, the Digital Personal Data Protection Act, 2023, and Common laws," Garg said.

Another issue is that the guidelines do not explicitly prohibit the use of personalisation, said Anupam Shukla, partner at Pioneer Legal. "While personalisation can be used to improve the user experience, it can also be used to show users different prices for the same product, depending on their perceived willingness to pay."

Still, according to Shreya Suri, partner at IndusLaw, the draft guidelines, if formalised, will definitely garner more protection for consumers whom the law presumes to be unsuspecting and manipulable.