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A way towards transparency : CCPA on dark patterns

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Introduction :

Dark patterns are a consumer tactic that is used to manipulate the choices of the user. For example, when someone is purchasing from an online store, the price of the product is exclusive of the taxes and delivery charges. The price the consumer opted for is more than what was shown in the initial stage. Dark pattern is a blanket term in which the user has to deliberately make a choice to consume what they need. There are many circumstances where exploitation of the consumer takes place due to these underlying dark patterns. Examples include unnecessary pop-up boxes which automatically drive the consumer away from the product or service they require[1].

The government of India has legislated the use of these patterns in the guidelines issued by the Consumer Protection Authority of India called the “Guidelines for Prevention and Regulation of Dark Patterns, 2023”

Other authorities on Dark Patterns :

In India, the major shield consumers have against any exploitation is the Consumer Protection Act, of 2019. Section 2(9)[2] defines consumer rights and it includes the right to be protected against harmful marketing and, right to be informed about the nature of the goods or services. The act of tricking a consumer into buying something or not providing the whole truth initially can be labelled as a violation of consumer rights along with unfair trade practices dealt with under Section 47[3] of the Act.

In the event of a violation of consumer rights, the Central Consumer Protection Authority issues guidelines to prevent unfair trade practices. Noncompliance with any orders passed by CCPA can lead to imprisonment of 6 months or a fine of up to Rs.20 lakhs or both[4]. In addition, the CPA punishes creating deceptive or misleading advertisements that harm customers’ interests. Penalties include up to two years in prison and a fine of up to Rs 10 Lakh. Moreover, a maximum sentence of five years in prison and a maximum fine of Rs.50 lakh may be applied for repeat offences. These penalties can also be applied for each additional violation[5].

The E-commerce Rules, 2020 is a regulatory framework which governs the goods and services bought online. It prohibits all sorts of unfair trade practices causing the dominant position of one particular company. Rule 4(3)[6] provides that “ No e-commerce entity shall adopt any unfair trade practice, whether in the course of business on its platform or otherwise.”

On June 15, 2023 the Advertising Standards Council of India, a self-regulatory body released the guidelines called the “Guidelines for Online Deceptive Design Patterns in Advertising”. It aimed to prevent drip pricing, which is the concept of deceiving the consumers from the actual prices at the end. The practice of baits in online advertisements were also prohibited by the guidelines or providing alternative products instead of the original one. Alongside these prohibitions, the guidelines also focussed on preventing disguised advertisements from other sites in the product page.

Guidelines for Prevention and Regulation of Dark Patterns, 2023

The central consumer protection authority exercises of its powers under Section 18 of the Consumer Protection Act, 2019[7] and issued the guidelines on November 30th, 2023. The guidelines define dark patterns as :

“ “Dark patterns” shall mean any practices or deceptive design patterns using UI/UX (user interface/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 autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practice or violation of consumer rights;”[8]

Under Section 5 of the guidelines, if any person or platform does something that is under Annexure I, will be said to have engaged in dark patterns. Annexure I of the guidelines contains the specified dark patterns which are strictly prohibited. There are in total 10 specified dark patterns which are prohibited.

Specified Dark Patterns :

The CCPA has outlined specific deceptive designs or illustrations as to what constitutes a dark pattern, they are[9] :

  1. False Urgency : It means falsely implying the product is running out of stock or creating a sense of urgency to mislead a user into buying the product. For example, A website showing only 2 are in stock while 30 others are looking to buy the same thing falsely is prohibited.
  2. Basket sneaking : It means the inclusion of additional products which was not added by the user during checkout wherein the total amount payable has increased as a result. However, in the proviso it was mentioned that providing complementary samples is not basket sneaking.
  3. Confirm Shaming : It means when the provider uses shame, guilt or fear in the user for not buying or using their product. For example, A platform that adds a charity in the basket using a phrase “charity is for rich, I don’t care.” would be deemed as a dark pattern.
  4. Forced Action : It means when the user is forced to take some action which would require them to buy an additional product or sign up for a service. Eg: Forcing the user tp subscribe to a newsletter to purchase a product.
  5.  Subscription trap : This occurs when the user is unable to cancel their subscription or when the process is too lengthy or elaborate. It also includes forcing auto-debits without easy cancellation policy.
  6. Interface interference : It means designing a feature wherein the user is manipulated into doing something they normally wouldn’t do if not for the feature. For example, An ‘X’ icon on the top-right corner of a pop-up screen leads to opening-up of another ad rather than closing it.
  7. Bait and Switch : It refers to the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome. Eg : A seller offers a quality product at a cheap price but when the consumer is about to pay/buy, the seller states that the product is no longer available and instead offers a similar looking product but more expensive.
  8. Drip Pricing : Means when the prices are changed or different while checkout would be referred to as a dark pattern.
  9. Disguised advertisement : It means a practice of posing, and masking advertisements as other types of content such as user-generated content or new articles or false advertisements.
  10. Nagging : It refers to when a website causes a lot of interruptions while browsing such as requests, options, information which are unrelated to the purchase disrupting the intended transaction. Eg : Websites asking a user to download their app, again and again.

Conclusion

This guideline can act as a step towards transparency in the e-commerce market regime of India. However, it also requires the authorities to keenly ensure companies follow it and in the right circumstances curb these actions. The objective of the guidelines is to provide a better online experience to users and prevent them from exploitation. The same can only be brought into reality if there is proper enforcement.

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Written by- Sanjana Ravichandran

[1] Gargi Sarkar, Govt Issues List of 13 Dark Patterns Plauging Ecommerce Websites, INC42 (Dec 04, 2023) https://inc42.com/buzz/govt-issues-list-of-13-dark-patterns-plaguing-ecommerce-websites/

[2] The Consumer protection Act, 2019 No. 36, Acts of Parliament, 2019 (India)

[3] Sec 47, “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice. The Consumer protection Act, 2019 No. 36, Acts of Parliament, 2019 (India)

[4] Advait Luthra, Ananya Mishra, India: ASCI Guidelines On Dark Patterns And The Way Forward, MONDAQ, (Aug 29, 2023) https://www.mondaq.com/india/dodd-frank-consumer-protection-act/1358384/asci-guidelines-on-dark-patterns-and-the-way-forward#:~:text=Dark%20patterns%20are%20basically%20user,for%20reviews%2C%20and%20so%20on.

[5] The consumer Protection (E-commerce) Rules, 2020.

[6] The consumer Protection (E-commerce) Rules, 2020.

[7]  Guidelines for Prevention and Regulation of Dark Patterns, 2023

[8] Section 2(6) of Guidelines for Prevention and Regulation of Dark Patterns, 2023.

[9] Annexure 1 of  Guidelines for Prevention and Regulation of Dark Patterns, 2023.