Safeguarding Consumer Rights: Unveiling the Guidelines for Prevention and Regulation of Dark Patterns, 2023

Introduction:

In the dynamic landscape of the digital age, the intersection of commerce and technology has given rise to a myriad of opportunities and challenges for consumers. One pervasive challenge that has garnered increasing attention is the employment of dark patterns – deceptive design and choice architectures which are strategically crafted to manipulate consumers into making decisions that are contrary to their best or intended interests. Recognizing the gravity of this issue, the Consumer Protection Act, 2019[1], has empowered regulatory authorities to address these deceptive practices head-on. On the 30th of November, 2023, a pivotal stride in consumer protection was taken with the issuance of the “Guidelines for Prevention and Regulation of Dark Patterns, 2023”[2] (hereinafter referred to as “Guidelines”) by the Central Consumer Protection Authority. Rooted in the Consumer Protection Act, these guidelines mark a significant milestone in curbing unfair trade practices and fostering a transparent and ethical digital marketplace.

Significance:

Dark patterns, encompasses tactics such as drip pricing, disguised advertisements, bait and switch, false urgency, etc. which pose a threat to the very essence of consumer choice and autonomy. The new guidelines serve as a robust response to these evolving challenges, setting clear parameters for businesses to adhere to and reinforcing the rights of consumers in the digital realm. The Guidelines, which are anchored in Section 18 of the Consumer Protection Act, grant right to the Central Consumer Protection Authority to proactively combat and prevent the proliferation of dark patterns. By specifically identifying and delineating 13 particular dark patterns, the guidelines equip regulators, businesses, and consumers alike with a nuanced understanding of the deceptive practices that demand vigilant oversight.

Developmental History:

A seminal development in this regard is the promulgation of the Consumer Protection (E-commerce) Rules, 2020[3], by the Department of Consumer Affairs under the aegis of the Consumer Protection Act, 2019. These rules serve as a robust framework to address the unique challenges posed by e-commerce entities, delineating their responsibilities and specifying the liabilities of both marketplace and inventory-based e-commerce platforms. Moreover, the rules meticulously outline provisions for customer grievance redressal, reinforcing the commitment to ensuring a seamless and secure consumer experience in the digital marketplace.

Complementing this initiative, the Central Consumer Protection Authority has further bolstered consumer protection through the issuance of the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022[4], on 9th June, 2022. These guidelines introduce a structured framework that not only defines conditions for an advertisement to be considered non-misleading and valid, but also imposes stipulations on bait advertisements and free claim advertisements.

The guidelines prescribe duties for manufacturers, service providers, advertisers, and advertising agencies, fostering an environment where transparency and truthfulness are paramount in advertising practices. Recognizing the pervasive issue of fake and deceptive consumer reviews, the Bureau of Indian Standards (“BIS”) has taken a pioneering step by notifying a comprehensive framework on ‘Online Consumer Reviews — Principles and Requirements for their Collection, Moderation, and Publication’[5] on 23rd November, 2022.

Specified Dark Patterns:

Annexure 1 of the Guidelines has laid out the various dark pattern practices which are generally observed within the digital market and have regulated against the same. All the practices which have been laid out within this Annexure are considered to be prohibited and Section 5 of the Guidelines brings them within the purview of the definition of dark patterns.  Given below are the list of dark patterns which have been prohibited under the Guidelines:

1. False Urgency – Falsely stating or implying a 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.
2. Basket Sneaking – Inclusion of additional items at the time of checkout from a platform, without the consent of the user, such that the total amount payable by the user becomes higher than the product chosen.
3. Confirm Sharing – 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 avail a product or service.
4. Forced Action – 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 procure the service that they had opted for.
5. Subscription Trap – Giving the user no choice to opt out of a subscription once they have availed it or making it abnormally difficult to cancel such subscription.
6. Interface Interference – A design element that manipulates the user interface in ways that either highlight certain specific information or obscure other relevant information relative to the other information; to misdirect a user from taking an action as desired, with the aim of misdirecting the user from taking a desired action.
7. Bait and Switch – The practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
8. Drip Pricing – A pricing technique in which firms advertise only part of a product’s price and reveal other charges later as the customer goes through the buying process.
9. Disguised Advertisement – A practice of masking advertisements as other types of content such as user generated content, new articles or false advertisements, which are designed to blend in with the rest of an interface in order to trick customers into clicking on them.
10. Nagging – When a user is disrupted and annoyed by repeated and persistent interactions, to effectuate a transaction and make some commercial gains, unless specifically permitted by the user.
11. Trick Question – The deliberate use of confusing or vague language in order to misguide or misdirect a user from taking desired action or leading consumer to take a specific response or action.
12. SaaS Billing – The process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by repeatedly issuing bills to the user, as many times as possible.
13. Rough Malwares – Using a ransomware or scareware to mislead or trick user into believing there is a virus on their computer and aims to convince them to pay for a fake malware removal tool that actually installs malware on their computer.

The threat actions and wrongdoers under the purview of these Guidelines will be liable to be penalized according to the provisions of the Consumer Protection Act, 2019 and will be subjected to heavy penalties in case they are found to implement dark patterns strategies in any manner or form, as specified within the Guidelines.

Conclusion:

The collective impact of these regulatory measures represents an effort to reinforce consumer trust and safeguard their interests in the burgeoning world of e-commerce. The Ministry underscores the government’s commitment to creating an e-commerce landscape that prioritizes fairness, transparency, and consumer welfare. The introduction of these guidelines is a testament to the commitment of regulatory bodies to foster an equitable marketplace that prioritizes consumer welfare. Through these measures, the Central Consumer Protection Authority aims not only to protect consumers from exploitation but also to create an environment where businesses are incentivized to uphold ethical standards in their interactions with consumers.

[1] Consumer Protection Act, 2019

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

[3] Consumer Protection (E-Commerce) Rules, 2020

[4] Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022

[5] https://www.pib.gov.in/PressReleasePage.aspx?PRID=1882828