India – Guidelines For Prevention And Regulation Of Dark Patterns 2023.

The Department of Consumer Affairs shared the draft “Guidelines for Prevention and Regulation of Dark Patterns, 2023” on September 6, 2023, which will be implemented the day they are notified in the Official Gazette. The Department of Consumer Affairs has now sought comments from the public until October 5, 2023. This article talks about what exactly Dark Patterns are, which are sought to be regulated by these guidelines.

What are Dark Patterns?

Dark Patterns are “any practices or deceptive design patterns using the User interface or user experience (UI/UX) interactions on any platform designed to mislead or trick users into doing something that they originally did not intend or want to do, by subverting or impairing the consumer autonomy, decision making or choice, amounting to a misleading advertisement or unfair trade practice or violation of consumer rights”.

In the contemporary digital age, the online marketplace has become an equally important aspect of everyone’s daily lives. Consumers make more purchases online than in physical mode, which has led to the need for regulations to prevent consumers from falling prey to the nefarious activities of platforms and sellers. The activities prohibited explicitly under these guidelines have been arrayed in Annexure I to the Guidelines.

The Dark Patterns listed in Annexure 1 to the Guidelines are as given below:

1. False Urgency- Creating a false sense of urgency to manipulate the user into making an immediate purchase decision. It may be done by showing the false popularity of a product or by implying a scarcity of availability of the product.For example, stating that it is a limited period offer exclusively for a select user group or showing that only a few units remain while many viewers are considering the purchase at any given moment. Creating such a false sense of urgency and scarcity is now prohibited under these guidelines.
2. Basket Sneaking- Including additional items in the invoice at the time of checkout, such as contributions to charity, donations or additional items and services without the knowledge or consent of the user in such a manner that the total amount payable by the user exceeds the amount payable by the user for the goods and services that he has explicitly chosen and given consent for.However, applicable taxes, transport cost, or any such overheads due to be paid to deliver the goods or services to the user will not be considered basket sneaking, provided that the same was disclosed to the user when making the purchase.For example- Automatically adding travel insurance on purchasing a flight ticket is considered basket sneaking. Similarly, automatically selling AMC or subscriptions without consent to purchase goods or services is considered basket sneaking.
3. Confirm Shaming- Use of any word or words, whether through audio, visual or written medium, to create a sense of shame, ridicule, guilt or fear to nudge the user to act in a certain manner and be propelled towards purchasing the said goods or services.For example, adding prompts for making charitable contributions as an ethical activity or emphasizing the need for buying insurance by using words or imagery to compel the user to choose insurance along with travel booking.
4. Forced Action- If any online platform, supplier or e-retailer tries to force the user or potential buyer into taking additional services or subscriptions to complete the purchase of the goods or services chosen by the buyer, this is considered Forced Action and is barred under the present Guidelines.For example, buying an annual subscription to a newsletter or magazine to access an individual article without allowing the option of purchasing just one or a few articles or products.Another example is forcing to download additional service apps (utility apps for carpenters, masons, electricians, plumbers, etc.) to make use of the app that the buyer has chosen (for renting a house) by making the app for housing defunct till all the other services app in the bundle is not downloaded.
5. Subscription Trap- Any act of the online platform, seller or e-service provider that makes cancelling the subscription to any service more cumbersome than registration by creating a long and confusing process of cancellation, which is ambiguous and uncertain, is considered a Subscription trap.For example, creating conditions of auto-renewal, even if the user has not opted for renewal, without any alerts or prompts regarding the expiry date of the subscription being near at hand.
6. Interface Interference- This means a design element in the interface that manipulates the users’ choices by highlighting certain aspects and concealing other relevant factors that may have affected the user’s decision.For example, using a colour pallet that makes the detection of negative confirmation or cancellation options difficult for the user of the interface.Another example is using the “X” icon to redirect the consumer to other websites of advertised products rather than allow the consumer to close the advertisement.
7. Bait and Switch- This refers to advertising a particular outcome based on the user’s action but giving an alternate outcome that interests the platform or the seller.For example, offering a discounted product, but when the consumer attempts to purchase, the platform or the seller states that the desired product is out of stock and offers an alternative product which is not of similar quality, is more expensive or both.
8. Drip Pricing- This is a practice by which all price elements are not revealed at the first instance. The user is lured into making the purchase, and the final price is revealed only when the actual payment is made after the purchase has been confirmed and the consumer has reached the checkout stage.Another similar situation arises when the product that has been purchased is later revealed to be possible for use only by downloading an app, which turns out to be a subscription-based app. However, if the price change is due to an actual increase in input costs that is beyond the control of the supplier or the platform, then the supplier or platform will not be liable under the offence of Drip Pricing.For example- The mandatory purchase of merchandise carrying the gym logo, such as shoes, towels and other gym equipment, which was not disclosed at the time of purchase of gym membership and not permitting the use of a gym without the merchandise carrying gym logos.Any online game that was purported to be free at the time of downloading the app but turns out to be free only for a trial period of 7-15 days, after which it becomes a paid-for service. Increase in price of flight tickets even during the completion of the booking process due to which consumer pays more for the ticket than what has been advertised on the web page.
9. Disguised Advertisement- This is a practice of masking the advertisement as website content or user-generated content that makes false claims in such articles that unduly influence the purchase of the product or service.In such a case, the website or seller is responsible for disclosing that the content is actually an advertisement so that it does not deceive potential customers. The Guidelines for Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, also applies to Disguised Advertisements as mentioned in these guidelines.
10. Nagging- This is the practice of bombarding the user with repeated interruptions by suggesting the download of some other app or providing an option for going to some other web page repeatedly to create a situation where the intended transaction of the user is getting interrupted and alternate option or even unrelated goods and services are being repeatedly offered to the user.
    
    For example, websites that send pop-ups to download their app repeatedly.
    Another example is when a website shows a constant request to turn on notifications without the option to decline the request.

This list is not exhaustive, and the Government may add more patterns from time to time to regulate the online marketplace. Regulating the activities mentioned above is definitely required as many consumers may not even be aware that they are being lured into making purchases. The enactment should act as a deterrent for such nefarious activities.