With the indispensable need for the internet and online interaction in current life, newer problems have cropped up requiring the analysis and deliberation upon them. An instance of the same can be while surfing a website if a red interface appears saying “Hurry! Only a few left”, “Congratulations! You have won a lottery” or “Login to access for free”, and once you proceed, it is all a hoax. While these are generally dismissed as some inherent elements in the website called “pop-ups”, the emerging cyber jurisprudence has shown a more nuanced approach, taming these as “Dark Patterns”. This article delves into the same facet and its regulation facilitated by recent notifications.
Within the broad domain of digital interfaces, users frequently become entangled in a web of manipulative design strategies called “dark patterns.” These deceptive user interface components are deliberately designed to coax people into doing actions they might not have otherwise chosen. The general phrase “dark pattern” refers to deceptive tactics intended to lead customers to make decisions they otherwise would not have made. These ultimately end up benefiting the company or platform implementing these designs. Digital platforms employ dark patterns to deprive users of complete information about their services and undermine their control over the browsing experience. This poses a threat to user experience and makes the overall browsing experience inefficient.
Dark Patterns encompass deceptive tactics such as misleading countdowns for online promotions, hidden costs buried in fine print, obscured cancellation buttons, disguising ads as credible endorsements, auto-playing videos, mandatory account creation for transactions, discreetly charging credit cards post-free trials, and employing subtle colours to conceal crucial information from users. These are employed by small start-ups and even tech giants like Amazon, Apple, Facebook etc.
The term dark patterns was coined by UX specialist Harry Brignull to refer to ways in which software can deceptively manipulate users. For instance, a company may employ subtle tactics like placing a small, “Unsubscribe” button at the bottom of an email to discourage users from cancelling subscriptions, while prominently featuring a large, bright “Buy” button for on-sale items to encourage purchases.
Not every pop-up should be assumed as a deceptive dark pattern. It’s crucial to consider that the true impact can be assessed by measuring the user’s response to a specific ad and deciding whether to proceed based on that reaction.
Regulation in India:
The increasing dependence on online shopping platforms has prompted the leading consumer protection agency, Central Consumer Protection Authority (CCPA) to develop guidelines safeguarding consumer rights in the digital marketplace.
The Consumer Protection Act, 2019 outlines unfair trade practices, which involve manipulating and exploiting consumers. The legislation establishes a mechanism for addressing these practices, ensuring the protection of consumer rights. Furthermore, the Consumer Protection Authority has the authority to investigate violations or unfair trade practices, either on its initiative or in response to a complaint. Section 18(2) of the Consumer Protection Act grants it the authority to issue guidelines to prevent unfair trade practices.
On November 30, 2023, (CCPA) released guidelines aimed at safeguarding consumer interests by preventing and regulating dark patterns. Dark patterns refer to practices or designs that manipulate or impair consumer autonomy, as outlined in the guidelines.
These guidelines apply to goods and services platforms, advertisers, and sellers in India. Individuals on any platform are forbidden from participating in deceptive or unethical practices. The CCPA would be the nodal agency to determine and clarify the ambiguities in the interpretation. In the event of any overlap between these guidelines and other applicable laws, a reasonable nexus will be considered rather than mutual derogation. This provides users with the option to report instances of dark patterns through a consumer helpline or via WhatsApp.
These are the following types of dark patterns:
- False Urgency: forced choice due to the small ambit of options on the interface.
- Basket sneaking: adding additional items to customers’ baskets without consent.
- Confirm shaming: inducing the customers into purchasing goods or services appealing the emotions like guilt, fear or excitement.
- Subscription trap: nonavailability of an exit option to the webpage, may sometimes go on to initiate auto-debit transactions.
- Misdirection: In software installers, misdirection occurs when users are presented with a button resembling a standard “continue” button. This involves displaying a prominent “I accept these terms” button, leading users to unknowingly accept terms for a different program than the one they intend to install.
- Roach Model: A design resembling a roach motel or a trammel net offers a simple entry but complicates the exit, as seen in businesses mandating subscribers to physically mail opt-out requests. The Federal Trade Commission (FTC) in the United States declared increased efforts in 2021 to combat such deceptive practices, targeting dark patterns like the roach motel tactic that deceives consumers into subscribing and then hinders cancellation.
- Bait and switch: These patterns showcase a very cheap or free amenity, product or service, only for the viewer to proceed and later find out to be unavailable. The window later opens to other products invoking costly investments.
- Privacy Zukering: These pop-ups can propel an individual into sharing information, often private, one is not by himself, expected to expose. It gets its name from Facebook and Meta legend Mark Zuckerberg. The California Consumer Privacy Act has endorsed rules restricting this conduct by businesses.
Other types include forced action, interface interference, drip pricing, disguised advertisement, nagging, trick questions, and rogue malware.
Conclusion
The global framework has helped in calling out the use of dark patterns, particularly bait-and-switch and misdirection. Meta Platforms Inc. v. Bundeskartellamt decided that express consent is required for Meta to track users’ data. If consumers do not provide consent for data tracking, they will not be subjected to unjustified delays or inferior services. The guidelines for India can prove to be an instrumental tool for expanding cyber security and online consumer interaction. However, the ground-level efficacy is for the time and redressal to show.
This article is written and submitted by Shreshth Jindald during his course of internship at B&B Associates LLP. Shreshth is a 2nd year year B.A. L.L.B (Hons.) student at NLU, Jodhpur.
