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The Terrain Of Dark Patterns In The Digital Age

In an era where the digital landscape is an integral part of our daily lives, the Indian government has taken a significant stride to protect consumer rights. Recognizing the escalating risks of consumer exploitation in the online realm, the government has introduced groundbreaking guidelines to prevent and regulate "dark patterns" within the digital ecosystem. Dark patterns are deceptive design practices employed by online platforms to manipulate user behavior and have become increasingly pervasive. From subtle countdown timers to strategically placed opt-out buttons, these tactics exploit cognitive biases, steering users towards decisions that may not align with their best interests.

The recent regulatory framework, outlined in the "Guidelines for Prevention and Regulation of Dark Patterns, 2023," signifies a transformative shift in the legal landscape. Empowering consumers and holding online platforms accountable, this initiative reflects a commitment to dismantling manipulative practices. Notably, on September 6, 2023, the Department of Consumer Affairs shared the draft of these guidelines, inviting public comments until October 5, 2023.

Subsequently, on November 30, 2023, the Central Consumer Protection Authority unveiled the final draft, exercising its powers under S. 18 of the Consumer Protection Act, 2019. Understanding and demystifying these dark patterns are essential for consumers and legal professionals, fostering a fair and transparent digital environment where consumer rights are rigorously protected.

Understanding Dark Patterns
The Guidelines define 'dark patterns' as meaning "any practices or deceptive design pattern using user interface (UI) or user experience (UX) 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 rights."

Colloquially, 'Dark Patterns' refer to deceptive and manipulative design strategies employed in user interfaces with the intent of coercing users into unintended actions. These exploitative design patterns leverage cognitive biases, steering user behavior to prioritize business interests over user experience. These practices are prevalent across digital platforms, spanning websites, apps, and online services. In essence, dark patterns obstruct users from making independent and well-informed choices, focusing more on the design and functionality of interfaces than the content itself.

Manipulation often takes the form of presenting choices in a non-neutral manner, emphasizing specific options through visual or auditory components. Examples include persistently prompting users to reconfirm decisions, making cancellation more challenging than logging in, and employing default configurations that are hard to alter. Noteworthy instances involve creating a false sense of urgency through countdowns, implying limited stock, and employing subscription traps during checkout processes.

For instance, the European Union intervened with Amazon, directing it to streamline its Prime subscription cancellation process. This intervention was because users faced obstacles such as intricate navigation menus and misleading language while attempting to unsubscribe, underscoring the need for regulatory guidelines.

Applicability & Prohibitions
The 2023 Guidelines apply to: (i) all platforms, systematically offering goods or services in India; (ii) advertisers; and (iii) sellers and provide that, "No person, including any platform, shall engage in any dark pattern." The guidelines further mention that, "Any person, including any platform, shall be considered to be engaging in a dark pattern if it engages in any practice specified in Annexure 1 of the guidelines."

Dark Patterns as per Annexure 1 of the Guidelines
Annexure 1 of the Guidelines prescribes an illustrative list recognizing the following 13 practices as Dark Patterns that are prohibited:
  1. False Urgency:
    • Creating a deceptive sense of urgency to influence users into immediate purchase decisions. This may involve falsely indicating product popularity or implying limited availability, such as claiming a limited-time offer exclusively for select users.
    • Certain broad themes in which false urgency can fall are stated below:
      1. Limited-Time Offers: Displaying messages such as "Limited-time offer!" or "Flash sale ends soon!" to create a perception that the user must act quickly to take advantage of a special deal.
      2. Countdown Timers: Implementing countdown timers next to products or promotions, suggesting that the user has limited time to make a decision or complete a purchase.
      3. Implied Scarcity: Indicating a scarcity of products by stating that there are only a few items left in stock, even if the actual inventory is not limited. Example: "Only 3 items left in stock! Act now!"
      4. Exclusive Offers: Claiming that an offer is exclusive to a particular user group, encouraging users to take immediate action to access the supposedly exclusive deal. Example: "Exclusive offer for our loyal customers � available for a limited time!"
      5. Constant Reminders of Expiring Deals: Sending frequent notifications or emails emphasizing that a deal is about to expire, creating a sense of urgency to act immediately. Example: "Hurry! Your special discount is about to expire. Don't miss out!"
      6. Fake Popularity Indicators: Displaying misleading information about the popularity of a product, such as fake reviews or indicating that many users are currently viewing or purchasing the item. Example: "Hot product! 50 people are viewing this right now."
      7. Urgent Notifications: Sending urgent notifications that create the impression of a critical event, pushing users to take immediate action. Example: "Time-sensitive alert: Take action now to secure your account!"
      8. Limited-Quantity Claims: Stating that a product is available in limited quantities to give the impression that it may run out soon, prompting users to make a quick decision. Example: "Only a few units left! Grab yours before they're gone!"
  2. Basket Sneaking:
    • Basket sneaking is a dark pattern where additional items are included in a user's shopping cart during the checkout process without their explicit knowledge or consent. This practice aims to increase the total amount payable by the user, often by adding extra products, services, or fees.
    • Example: Automatically including travel insurance when purchasing a flight ticket or selling subscriptions without the user's explicit consent.
    • Certain broad themes in which basket sneaking can fall are stated below:
      1. Automatic Charity Donations: Including a donation to a charity or cause automatically in the user's shopping cart during checkout without clear disclosure or the user's explicit consent. Example: Adding a default donation to a charity when purchasing items online without the user's knowledge.
      2. Unwanted Insurance Additions: Automatically including insurance products, such as travel insurance, without the user's explicit consent when purchasing related items like flight tickets. Example: Adding travel insurance to a user's cart during flight ticket checkout without clear disclosure or opt-in consent.
      3. Subscription Services Without Consent: Adding subscription services, such as magazines, streaming services, or loyalty programs, to the user's cart without their knowledge during the checkout process. Example: Automatically enrolling users in a paid subscription service when they are completing a purchase without clear disclosure.
      4. Accessory Additions: Including additional accessories or complementary products in the shopping cart without the user's explicit consent when purchasing a primary product. Example: Adding accessories like phone cases, extended warranties, or premium features to the cart without clear disclosure or the option to opt-out.
      5. Auto-Enrollment in Membership Programs: Automatically enrolling users in membership programs or loyalty schemes during the checkout process without clear disclosure or the user's explicit consent. Example: Adding customers to a premium membership program with associated fees without their knowledge when making a purchase.
      6. Unwanted Services Bundle: Bundling additional services or features, such as extended warranties or premium support, into the shopping cart without the user's explicit consent. Example: Automatically adding a premium service package to the cart without clear disclosure or the ability for the user to decline.
      7. Hidden Fees and Charges: Including undisclosed fees or charges in the shopping cart during checkout, contributing to a higher total amount payable without the user's explicit consent. Example: Concealing extra charges, such as handling fees or service fees, until the user reaches the checkout stage.

  3. Confirm Shaming:
    • Confirm shaming is a dark pattern where users are manipulated through language or visuals to feel guilty, embarrassed, or reluctant about choosing not to opt for a particular option. This tactic is designed to push users into making a decision that benefits the company or platform including by way of inducing customers to make more purchases.
    • Certain broad themes in which confirm shaming can fall are stated below:
      • Charitable Contributions: Using guilt-inducing language or visuals to pressure users into making charitable contributions during the checkout process. Example: Displaying a prompt like, "Would you like to donate $5 to help those in need?" with options like "Yes, I care" and "No, I don't care."
      • Ethical Choices: Employing language that makes users feel morally obligated to select certain options, often related to environmental sustainability or ethical practices. Example: When making a purchase, the option to decline contributing to an environmental cause might be presented as "No, I don't care about the environment."
      • Insurance Purchase: Using fear-inducing language to nudge users into buying insurance products, making them feel insecure or irresponsible if they choose to decline. Example: Prompting users during a travel booking with options like "Yes, I want to protect my trip" and "No, I prefer to risk it."
      • Subscription Renewals: Creating prompts that imply users are making an unwise or irresponsible decision if they choose not to renew a subscription. Example: A message like, "Are you sure you want to miss out on exclusive benefits? Renew your subscription now!" with options like "Yes, I'll renew" and "No, I'll miss out."
      • Upgrades and Add-ons: Using language that implies a lack of foresight or dissatisfaction if users choose not to upgrade or add additional features to their purchase. Example: "Upgrade for a better experience. No, I'm okay with the basic version" with the "No" option appearing less favorable.
      • Reward Programs: Encouraging users to enroll in reward or loyalty programs by framing the decision not to join as a missed opportunity or lack of interest. Example: "Yes, I want to earn rewards" and "No, I'm not interested in saving money."
      • Product Warranty: Presenting options in a way that implies users are being irresponsible or careless if they decline to purchase extended warranties. Example: "Protect your purchase! Yes, I'll buy the extended warranty" and "No, I'll risk it without protection."

  4. Forced Action:
    • Any attempt by online platforms, suppliers, or e-retailers to coerce users into acquiring additional services or subscriptions to complete their chosen purchase, which is prohibited under the guidelines.
    • Example: Requiring the purchase of an annual subscription to access an individual article or product without offering the option to buy single articles or products.

  5. Subscription Trap:
    • Creating a cumbersome and confusing process for canceling subscriptions, making it more challenging than the initial registration.
    • Example: Auto-renewal conditions without alerts or prompts regarding the imminent expiration of the subscription.

  6. Interface Interference:
    • Design elements in the interface that manipulate user choices by emphasizing certain aspects while concealing other relevant factors that could impact the user's decision.
    • Example: Using a color palette that makes it difficult for users to detect negative confirmation or cancellation options.

  7. Bait and Switch:
    • Advertising a particular outcome based on the user's action but providing an alternative outcome that serves the platform or seller's interests.
    • Example: Offering a discounted product, then claiming it's out of stock and presenting a more expensive or lower-quality alternative.

  8. Drip Pricing:
    • Withholding certain price elements until after the purchase has been confirmed and the consumer reaches the checkout stage.
    • Example: Mandating the purchase of merchandise with the gym logo, undisclosed during gym membership registration, or revealing after purchase that a product can only be used by downloading a subscription-based app.

  9. Disguised Advertisement:
    • Masking advertisements as website content or user-generated content, making false claims that unduly influence product or service purchases.
    • Example: Presenting false claims in articles without disclosing that the content is an advertisement.
  10. Nagging:
    • Bombarding users with repeated interruptions, such as suggesting app downloads or repeatedly offering alternative goods and services.
    • Example: Constant pop-ups encouraging app downloads or continuous requests to enable notifications without the option to decline.

  11. Trick Question:

    • Using intentionally confusing language, like perplexing wording or double negatives, to mislead or divert users from the intended action.
    • Example: When unsubscribing, you might be asked, "Do you want to stay connected and keep enjoying our latest updates forever?" with response choices like "Yes, I'd like to stay connected" and "Not Now," instead of a straightforward "Unsubscribe."

  12. SaaS Billing:
    • Systematically generating and collecting recurring payments from consumers within a Software as a Service (SaaS) business model. This is achieved by strategically leveraging positive acquisition loops in recurring subscriptions to acquire funds from users in a discreet manner.
    • Example: Converting the free trial into a paid subscription without notification, charging for features and services not used by a consumer, using shady credit card authorization practices to deceive consumers, etc.

  13. Rogue Malwares:
    • Utilizing ransomware or scareware to deceive users into thinking their computer has a virus. The objective is to persuade them to purchase a counterfeit malware removal tool, which installs malware on their computer instead of removing it.
    • Examples:
      A pirating website/app falsely promising free content but leading to embedded malware upon accessing the link, consumers encountering persistent pop-ups with advertisements on pirated platforms that are embedded with malware, despite gaining access to the content. Consumers being prompted to click on an advertisement or automatically redirected to one, only to find their personal files locked up. Subsequently, they receive a demand for payment to regain access, revealing a deceptive tactic, etc.
The Guidelines represent a positive step forward, clarifying the scope of dark patterns within the Indian legal framework. The clarification benefits consumers and e-commerce businesses by increasing awareness and informing permissible marketing practices. While it enables businesses to assess the legal permissibility of their online practices, tools, strategies, or marketing approaches more effectively, there may be apprehensions of excessive compliance cost and over-regulation.

Furthermore, while looking at dark patterns, practices known as 'light patterns' that emphasize consumer-friendly structures and prioritize consumer interest through already selected options must also be evaluated carefully. Such practices may also run the risk of promoting certain business models over others while assuming consumer's best interests.

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