On 30 November 2023, the Central Consumer Protection Authority (CCPA), issued and notified under section 18 of the Consumer Protection Act 2019 (Act), the 'Guidelines for Prevention and Regulation of Dark Patterns, 2023' (Guidelines) with a view to prohibit any person or platform from engaging in any dark pattern practice. The Guidelines would be applicable to all platforms, systematically offering goods or services in India, advertisers and sellers.
Background and Overview of Guidelines
Dark patterns - a term that has recently garnered the attention in the digital marketplace and of regulators across the world, has been defined by the CCPA as 'any practice 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 the consumer autonomy, decision making or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer right'. In simple words and as also explained by the Advertising Standards Council of India (ASCI), a dark pattern is a user interface, generally found on the web, that has been crafted to trick or manipulate users into making choices that are detrimental to their interest.
It is common for e-commerce and other platforms on the web to design a user interface that influences user behavior on the platform and encourages consumers to purchase more on the platform or generate more business for them. However, if such an interface is misleading or tricks the consumer into doing something that they originally did not want to do, then the same would qualify as a dark pattern which has now been prohibited by the CCPA under the Guidelines. However, no independent penalty or consequence of a violation of these Guidelines has been specified. It may therefore be reasonable to assume that a consumer would be required to resort to the complaint mechanism / redressal provisions in the principal Act which deal with misleading advertisements and/or unfair trade practices.
The Guidelines specify a list of 13 practices and illustrations (in Annexure 1 thereof), to provide guidance on what kind of practices would qualify as dark patterns. The same have been briefly summarized below for ease of reference:
| Sr No. | Specified Dark Pattern | Meaning/explanation (in brief) |
| 1) | False Urgency | falsely stating or implying the 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, including- (i) showing false popularity of a product or service to manipulate user decision; (ii) stating that quantities of a particular product or service are more limited than they actually are. |
| 2) | Basket Sneaking |
inclusion of additional items such as products, services, payments to charity or 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 product or service chosen by the user. Provided that the addition of free samples or providing complimentary services or addition of necessary fees disclosed at the time of purchase, shall not be considered as basket sneaking. |
| 3) | Confirm shaming | 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, primarily for the purpose of making commercial gains by subverting consumer choice. |
| 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 or share personal information in order to buy or subscribe to the product or service originally intended by the user. |
| 5) | Subscription trap |
the process of:
|
| 6) | Interface interference | 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 as desired. |
| 7) | Bait and switch | practice of advertising a particular outcome based on the user's action but deceptively serving an alternate outcome. |
| 8) | Drip pricing |
a practice whereby-
Explanation-: A marketplace e-commerce entity shall not be liable for price fluctuations to the extent attributable to price changes by third party sellers or due to other factors beyond their control. |
| 9) | Disguised advertisement |
practice of posing, masking advertisements as other types of content such as user generated content or 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. Explanation-
|
| 10) | Nagging | dark pattern practice due to which a user is disrupted and annoyed by repeated and persistent interactions, in the form of requests, information, options, or interruptions, 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 like confusing wording, double negatives, or other similar tricks, 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 | process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible. |
| 13) | Rogue 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. |
Comment
With the consistent increase in online commerce and internet advertising, consumers are increasingly vulnerable to dark patterns as companies tend to use complex web designs to maximize commercial gains from each user interaction. There lies a fine line between ethically influencing or persuading consumer behavior and in manipulating them into doing something that they did not intend to or want to do. The Guidelines aim to give more power to a consumer's ability to make an informed decision and protect them from such interactions on the web, which have the potential of tricking, trapping or misleading them. It may be relevant to note that the specified dark patterns are similar to those released by ASCI in a report issued by it in December 20221 and are in furtherance of the overall objective of regulators to ensure safety of users, including on the web.
Footnote
1. https://www.ascionline.in/wp-content/uploads/2022/11/dark-patterns.pdf
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