Prohibiting 'dark patterns' a win for consumer protection post-guidelines

Companies in India offering goods and services online may have to rethink their user interface and marketing strategies after the government on Friday released final guidelines on the regulation of “dark patterns”, or the use of deceptive designs on online platforms used to manipulate or influence users into making certain choices that may not always be in their best interest.

The regulations apply to all platforms offering goods and services, advertisers and sellers, and due to the sheer size of the industry, their implementation could pose significant difficulties for authorities.

Dark patterns amount to misleading advertisement or unfair trade practice or violation of consumer rights, the Central Consumer Protection Authority (CCPA) said in a gazette notification on November 30, listing 13 deceptive practices that fall under the ambit of “dark patterns,” up from the 10 identified in the draft it had released in September.

These include false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, disguised advertisement, and nagging. The three new additional patterns listed in the final guidelines are trick question, SaaS (software as a service) billing and rogue malwares.

While the guidelines are an indication that consumer protection authorities in India are keeping up with the times by adding onto existing frameworks, implementing them effectively could be a mammoth task for the government.

“It's going to be a very big challenge for them. There’s a huge number of companies. We are discussing the largest, most prominent examples like ticket booking or platforms like Amazon, but there's so much more that’s available online through Instagram and different types of social media, and all of these have the potential to follow such practices. So for them to really monitor this is going to be very difficult,” as per Sweta Rajan, Partner, Economic Laws Practice.

‘Hurry, only one item left’

The term “dark pattern” was first coined in 2010 to describe deceptive strategies employed by online platforms to trick clients. User interface techniques like creating a false urgency or shaming users into making a certain choice allows companies to influence user behaviour in a manner that serves their interests.

One of the most common examples of a “dark pattern” includes false urgency, which means manipulating users into buying a certain product through portraying false popularity or scarcity.

Another regulation trick platforms use is manipulating emotions like guilt, fear or shame to influence users into making a certain choice or purchase, also known as confirm sharing. Forced action is when users are forced into making a purchase, subscribing to a service or divulging personal information to be able to do what they originally intended.

Moreover, while the guidelines have defined what is permitted and what isn’t, their interpretation remains relative due to the number of different ways these tricks can be snuck in. “That is something that will evolve over time, and implementation management will be a big challenge,” Rajan said.

Tech companies operating in the country also feel this could affect the state promise of enabling “ease of doing business” in the economy and be detrimental to the growth of India’s digital economy.

When draft regulations were released earlier this year, Asia Internet Coalition, which represents tech giants including Apple, Google, Meta, Amazon and X (formerly Twitter), had also suggested that the guidelines “unnecessary regulatory overlap” with existing frameworks that could make compliance difficult. But since India’s consumer base is so diverse with an obvious digital divide, it makes it even more important for the government to work in the interest of users.

“It might create some issues and operationally, companies might have to revisit and review their process to see what kind of practices they do have and clean it up. But in the larger scheme of things, everybody has to adjust and modify according to the law to ensure that consumers are not being abused,” Rajan opined. “Doing business in India comes with its own challenges, and this is just one more challenge,” she added.