Have you ever been forced to provide your credit card information to access a “Free Trial” or encountered websites that compel you to accept specific terms or create obstacles when cancelling a free subscription before it switches to a premium one? If so, you have encountered instances of Dark Patterns, intentionally designed by platforms to manipulate user behaviour.
Typical examples of “dark patterns” include notifications or interface elements that create a sense of urgency, like “only 2 rooms left, 30 others are looking on this right now,” or that tend to shame users with phrases like “charity is for rich, I don’t care”, or that enable persistent pop-up boxes that don’t accept no for an answer, or even countdown timers for when an offer expires.
These practices are widely regarded to be Unfair Trade Practices (UTPs), which manipulate the decision-making choices of consumers. When businesses or platforms are involved in these kinds of practices, they can get customers to act in ways that aren’t in their best interests and that they wouldn’t normally act in.
These patterns are neither new, nor sudden. However, until now, there were no specific guidelines or statutes prohibiting them. On November 30, the Central Consumer Protection Authority (CCPA) issued guidelines under Section 18 of the Consumer Protection Act, 2019, which prohibits the practice of the dark pattern.
Dark pattern has been defined for the first time in the guidelines to mean “any practices or deceptive design pattern using user interface or user experience interactions on any platform that is designed to mislead or trick users to do something they originally did not intend or want to do, by subverting or impairing consumer autonomy, decision making or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer rights”.
The guidelines supplement the general regulations and aim to offer a comprehensive list of practices that will be classified as dark pattern practices. Annexure-1 of the Guidelines, CCPA has specified 13 practices as dark patterns and there are illustrations also provided to better explain such practices. Further, the list is not exhaustive and CCPA may from time to time add to this list any such practice it considers to be dark pattern. CCPA has banned use of these dark patterns on platforms, which intend to deceive customers or manipulate their choices.
The guidelines are applicable to all the platforms offering goods or services in India, including advertisers and sellers. This implies that any platform, regardless of its location, that offers goods or services for sale in India may be held legally responsible according to these guidelines.
It is clearly stated in the guidelines that the dark pattern practices outlined in Annexure-1 are strictly prohibited. Any individual or platform that participates in any of the practices specified in Annexure-I of the guidelines shall be considered to be engaging in dark pattern practices.
However, there are no provisions in the guidelines detailing how the accountability is to be enforced. The guidelines do not explicitly empower CCPA under Consumer Protection Act 2019 to enforce any penalty for violation of the guidelines. This is a change from the original draft, which was circulated for feedback from stakeholders and specifically provided that the provisions of the Consumer Protection Act 2019 shall apply to any contravention of the guidelines.
It is also not clear whether the person or platform found indulging in such unfair practices specified by the guidelines will be presumed to have engaged in dark patterns or if the finding of dark pattern will depend upon a proper investigation as required by Section 19 of the Consumer Protection Act.
Further, there is no effective or transparent mechanism to ensure that platforms do not resort to practices such as creating ‘False Urgency’, as there is no real time mechanism to keep a check on the truth of the claims. In the example mentioned above, a travel aggregator trying to push the sale of hotel rooms by making the claim that only 2 rooms are left, would constitute a dark pattern as per the guidelines, however, it would be difficult to ascertain the truth of the claims made by the platform.
Having stated the above, these guidelines are a step forward in preventing the use of deceptive practices that undermine the autonomy of consumers. At present, India has the second highest number of internet consumers, however a much darker reality comes to the fore when we see that digital literacy amongst the Indian youth is at a meagre 27.5 percent for the ages between 15-29. These guidelines would make it much easier for any person to be more in control of the data they give out and be better informed of the decisions they make.
Even though the regulatory framework is at a nascent stage, the guidelines are expected to reinforce an increased sense of accountability among market participants, specifically sellers and advertisers.
Shri Venkatesh is the Managing Partner and Nihal Bhardwaj, an associate at Delhi based full-service law firm SKV Law Offices.