With the world available at your fingertips 24 hours a day and access to an estimated 1.13 billion websites available in the public domain, consumers are spoiled for choice. In the modern-day equivalent of the space race, engagement is the name of the game, with entire teams dedicated to creating the most addictive and easy-to-use platforms and applications. However, concerns have been raised recently regarding certain aspects of UI/UX design, and how they guide (and even manipulate) consumer choices, often to the detriment of the consumers.
A dark pattern is a misleading or deceptive piece of UI/UX design that attempts to manipulate or trick the human user in order to get them to act in a manner they may not ordinarily have. For instance, while unsubscribing from a streaming platform or a mailing list, if the 'unsubscribe' button is in a misleading colour or is buried in paragraphs of text, or other offers of retaining the subscription are presented before the option to unsubscribe, the company is likely trying to dissuade the user from cancellation using dark patterns. Another example of dark patterns is the use of countdown clocks on e-commerce platforms, urging the customer to accelerate their decision-making process to make any purchases. Therefore, dark patterns lead users to make decisions that may not likely be in their best interests, to the ultimate commercial benefit of the company or business.
When a series of micro decisions and ease of operability separates successful platforms from others, design and user interfaces play a key role in ensuring customer engagement and retention. Therefore, human biases and psychology are playing an increasingly important role in how websites and applications are set up. The integration of dark patterns is, thus, carefully crafted in order to capitalise on human nature, but often not for consumer benefit. Information asymmetry undoubtedly exists between users and organizations, which makes it nearly impossible for regular users to protect themselves from deceptive trade and design practices.
Indian regulators, too, have recognised the harm dark patterns could pose for consumer protection. In November 2022, the Advertising Standards Council of India ("ASCI") released a discussion paper to examine dark or deceptive patterns and to examine the issues surrounding them. We have written about this discussion paper in a previous article. Recently, Rohit Kumar Singh, the Secretary, Department of Consumer Affairs, regarding dark patterns, said: "The Protection of Consumers is a paramount concern to Department of Consumer Affairs. Deceptive patterns that manipulate consumer choice and impede their right to be well informed constitute unfair practices that are prohibited under the Consumer Protection Act, 2019. We are committed to work collaboratively with all stakeholders as we navigate through this evolving issue, and we are hope that industry self-regulates itself and address this issue."1
In an attempt to regulate the use of the dark patterns in digital advertising, the ASCI released the Guidelines for Online Deceptive Design Patterns in Advertising ("Guidelines") on June 15, 2023, in order to ensure that digital advertisements do not breach the ASCI Code. The following guidelines will be applicable from September 1, 2023:
- Drip Pricing: In Drip Pricing, entire details of the prices are not revealed to the user upfront, and the total price is revealed at the end of the transaction. Under the guidelines, quoted prices must now include details regarding all non-optional taxes, duties, fees and charges that apply to all or most buyers so as to prevent Drip Pricing;
- Bait and Switch: Under the Bait and Switch variant, an advertisement implies a certain outcome basis a user's action but serves an alternative outcome upon use instead. For instance, a website that offers hotel rooms would be guilty of using this method if it has listings at a certain advertised price but, upon trying to book a stay, the advertised price cannot be availed by the user. Under the Guidelines, this practice is considered misleading, and shall be a breach of the code;
- False Urgency: Any advertiser that states or implies that quantities of a product or service are more limited than reality, amounts to misleading consumers. In the case of any complaint, the advertisers would now be required to demonstrate the stock position at the time of making the advertisement was at a level where, "the urgency communicated could not be considered misleading;" and
- Disguised Ads: The Guidelines now require all advertisements in a misleading format, which may be confused with editorial or organic content, to clearly disclose that it is an ad.2
The interplay between responsible design, human psychology and enhanced regulations will, ideally, lead to enhanced regulations in the field. Dark patterns are omnipresent, and while not all such design choices may be implemented to manipulate the user into making harmful decisions, the need to exercise caution still arises. Tech and consumer protection policy framed in this regard should focus on creating transparency for the users and protecting them, instead of permitting the proliferation of manipulative design and online architecture practices. While the ASCI is only a self-regulatory body, the implementation of these Guidelines will be a necessary first step in taking concrete steps to ensure enhanced consumer protection.
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