India: Protection From Dark Patters: Guidelines To Regulate The Unregulated

The Central Consumer Protection Authority (hereinafter referred to as the "CCPA") on 30^th November, 2023 released the Guidelines for Prevention and Regulation of Dark Patterns, 2023 (hereinafter referred to as the "Guidelines"). The Guidelines have been framed under the powers as conferred by Section 18 of the Consumer Protection Act, 2019 (hereinafter referred to as the "Act"). The Guidelines deal with 13 dark patterns as described in detail in Annexure 1 of the Guidelines, wherein "Dark Patterns" have been defined under Guideline 2(1)(e) which reads as below:

[Emphasis supplied is ours]

It essentially refers to different methods undertaken by advertisers and online sellers as are highlighted along with detailed explanations followed by examples as to how they tend to lure or rather compel the customers into buying their services and/or products, by employing tricks wherein a false sense of urgency, confusion and other methods of putting the user in duress are engaged so that the user can agree to all, in order to simply make the purchase and exit. The CCPA also reserves the right to update the list from time to time as mentioned in Annexure 1.

The above-mentioned factors termed as dark matter are expressly prohibited by the Guidelines.¹ These Guidelines govern the following, namely:

• all platforms, systematically offering goods or services in India;
• advertisers; and²

The Guidelines seek to protect the rights of users against the various trips and traps employed by entities as mentioned in Guideline 3 of the Guidelines³ against exploitation of users for economic gain. Guideline 2(1)(j) defines users and the same is reproduced herein below:

The Department of Consumer Affairs (hereinafter referred to as the "DoCA"), the Advertising Standards Council of India (hereinafter referred to as the "ASCI") along with other stakeholders constituted a Task Force on 28.06.2023 to prevent and regulate the dark pattern scenario that was infecting the e-commerce marketplace in India. A draft with respect to the same was released and suggestions and views on the same were invited from the stakeholders that had to be submitted by 05.10.2023. The draft provided for 10 dark patters and then amendments were made internally to the same before releasing the final Guidelines.⁴

The following dark patterns are listed in the Guidelines-[5]

1. "False Urgency" wherein an artificial shortage is highlighted so that it leads to an immediate purchase by the user and restricts the user's option to explore better and perhaps land a better offer. This also includes time bound pressure such as an exclusive sale.

2. "Basket sneaking" refers to the addition of items which were otherwise not selected by the user voluntarily to the cart. However, this does not bar any addition of free samples and complimentary services and allows for the necessary fee like that of government taxes, delivery charges, etc.

3. "Confirm sharing" is an interesting addition wherein the Guidelines prohibit use of phrases which would create a sense of fear or embarrassment in the mind of the user and will consequently cloud the user's judgement and the user is unable to use and explore the platform with a free mind. Like when booking a flight, the phrase "I will stay unsecured" is reflected on the non-selection of an insurance policy along with the ticket.

4. "Forced action" is when the user is compelled to buy additional product or service or sign up for something likewise in order to facilitate and complete the initial purchase that the user wanted in the first place. This also includes forcing to share personal information which is non-related for the intended purchase or downloading a specific app or signing up for a newsletter in order to complete the transaction.

5. "Subscription trap" refers to a process wherein the termination of a paid subscription is made extremely complicated, lengthy and cumbersome. This also includes forcing a user to mandatorily furnish payment details for auto renewals even for a free of charge subscription.

6. "Interface interference" is when a manipulative element in the design of the current layout being availed by the user, misleads the user by obscuring relevant information and highlighting specific information as wanted by the seller, like when a pop up is displayed and the "X" icon instead of closing the same, redirects the user to some different page.

7. "Bait and switch" refers to the practice of manifesting a similar product to the user based on their searches and actions and then switching to an alternative similar product which is priced higher whilst showcasing that the product selected by the user has suddenly become unavailable.

8. "Drip pricing" means the practice of not revealing the entire price of a product or service before checkout and only showcasing the same post purchase where there is a sudden influx in the price. This is also where a purchased service is barred from being used unless a mandatory additional purchase is executed which the user does not require. Herein the Guidelines take into account a scenario wherein if the price is increased by the third-party sellers, then the e-commerce entity shall not be liable for the same.

9. "Disguised advertisement" means the disguising of advertisement as other forms like that of user generated content or articles and likewise which lures the user into selecting them as it looks as if the same is blended with the current interface.

10. "Nagging" as the term is itself self-explanatory, is wherein the user experience is continuously interrupted in want of requests for executing a commercial transaction to the benefit of the advertiser or seller like that of repeated requests for downloading a certain mobile application or for punching in personal details even when not required in order for the user to continue their experience.

11. "Trick question" refers to the use of calculated and intentional use of confusing and vague terms, phrases and language so as to misguide and thereby compel the user into executing an action which would avail benefits to the advertiser or seller which ideally was not the ideal position subscribed to by the user.

12. "SaaS billing" refers to the collection of recurring payments from the user which the user might have once subscribed to but subsequently the payments have been debited from the user's account silently without intimating notifications to the user about the same or converting a free subscription into a paid one without notification or consent.

13. "Rogue Malwares" is wherein misleading information is displayed that the user's system is infected with a certain type of virus and that immediate rectification steps are required by immediately purchasing a remedy to counter the same.

Conclusion

The idea that today we are living in a world where everything is available at literally the click of our fingers, that it has exposed us to vulnerabilities which were absent in the real marketplace, but they cannot be sidelined for long. We are a long way from making the virtual world a tightly knit secure form, however with the protection offered by the Guidelines above, it can be fairly concluded that we are in a transitory environment, headed to a or atleast striving for less vulnerabilities and more opportunities.

These Guidelines become more so important for with the advent of technology and the brick and mortar market place practically becoming virtual, it is of utmost importance to secure the rights of the users not only in terms of the quality of the products or services but rather to ensure a seamless experience, whilst at the same time maintaining a healthy competition in the marketplace so that user can avail the best quality at the most competitive prices and keeping up the underlying object of the Act and that of any robust economy, being "customer is king"!

Footnotes

1. Guideline 4 of Guidelines for Prevention and Regulation of Dark Patterns, 2023 which reads as below:

"4. Prohibitions against engaging in dark patterns. - No person, including any platform, shall engage in any dark pattern practice."

2. Guideline 3 of Guidelines for Prevention and Regulation of Dark Patterns, 2023

3. "...

(i) all platforms, systematically offering goods or services in India;

(ii) advertisers;

(iii) sellers."

4. Notification J-24/34/2023-CPU Section – CPU [31763] as published by Department of User Affairs, Ministry of User Affairs, Food & Public Distribution, Government of India.

5. Annexure 1 to the Guidelines for Prevention and Regulation of Dark Patterns, 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.