THROWING LIGHT ON DARK PATTERNS IN ADVERTISING
The Editorial Column is authored by Stuti Singh and Amishi Jain, Associate Editor and Assistant Editor respectively at the RGNUL Financial & Mercantile Law Review.
The Department of Consumer Affairs, Government of India sought public comments on “Draft Guidelines for Prevention and Regulation of Dark Patterns” (“the Guidelines”) as empowered under Section 18(2)(l) of the Consumer Protection Act, 2019 (“the Act”).
Framed under an interactive stakeholder consultation, the guidelines are aimed at identification and regulation of certain manipulative practices in advertising called “dark patterns”. This column aims at expounding the concept of dark patterns and analyzing the regulations vis-a-vis the existing legal framework on this point.
1.CONCEPTUAL UNDERSTANDING OF DARK PATTERNS
A dark pattern is a user interface that has been crafted to trick or manipulate users into making choices that are detrimental to their interests. More often than not, these are directed towards the profit of the website owner or advertiser.
Multiple stakeholders and experts have tried to study and divide these patterns into non-exhaustive categories. A reportby the Federal Trade Commission broadly identified and classified dark patterns under the following heads:
Elements that induce false beliefs: One of the most commonly used tactics is to manipulate consumer choice by inducing false beliefs. This includes practices such as advertisements deceptively formatted to look like independent, editorial content, purportedly neutral comparison-shopping sites that are actually paid by the participants, timers on offers that are not truly time-limited, claims that an item is almost sold out when there is actually ample supply.
Elements that hide or delay disclosure of material information: This tactic basically works by hiding or obscuring material information from consumers, such as burying key limitations of the product or service in dense Terms of Service documents that consumers don’t see before purchase.
Elements that lead to unauthorized charges: Another typical dark pattern is deceiving consumers into paying for things or services they did not want or intend to purchase, regardless of whether the transaction involves single or recurring charges. For instance, an in-app “buy” button in a kids’ app to proceed to another level or making cancellation extremely difficult.
Elements that obscure or subvert privacy choices: Another common dark pattern is the use of design features that conceal or sabotage users' privacy options. As a result of the same, customers may be ignorant of their online privacy options or what those options may imply. These include not allowing refusal to data collection, frequent prompting of unwanted settings, default settings that maximize data collection, etc.
The Secretary of Department of Consumer Affairs (hereinafter “the DoCA”), while addressing the stakeholders on June 13, 2023 stated that the protection of users is of paramount concern, and manipulative practices adopted in advertising impede the right to be informed under the Act.
Following the consultation, the Advertising Standards Council of India (“ASCI”) released a discussion paper, along with guidelines under the Code for Self-Regulation of Advertising Content in India, in connection with the requirements for advertisements to be honest and not abuse consumers’ trust. As per the paper, 29% of the advertisements processed by the ASCI in 2021-22 were disguised advertisements, which constitute dark patterns. Accordingly, a task force consisting of representatives from Industry Associations, ASCI, NLU’s, VCO’s and e-commerce platforms including Google, Flipkart, RIL, Amazon, Go-MMT, Swiggy, Zomato, Ola, Tata CLiQ, Facebook, Meta, Ship Rocket and Go-MMT was set up for drafting of a policy on safeguarding consumer’s interest.
Applicable to all platforms, sellers and advertisers, the guidelines define dark patterns as “any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; 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”;
Annexure 1 to the guidelines lists four main types of dark patterns:
• Drip pricing: This entails that advertisements and e-commerce websites must include all duties and taxes that are to be applied in the quoted price itself, to prevent drip pricing. Drip pricing is a practice wherein the elements of prices are not revealed upfront and the total price is revealed towards the end of the buying process.
• Bait and switch: When an advertisement implies an outcome on the basis of a consumer’s action, but serves a different outcome altogether, is considered misleading.
• False urgency: In cases of advertisements stating that the quantity of a product or service is limited in number, more than its actual quantity is a misleading and deceptive method. Henceforward, advertisers are required to demonstrate the stock position when the limited quantity message is shown.
• Disguised advertisements: When advertisements are in form of editorial content, it becomes imperative for advertisers to disclose that it is an advertisement.
The guidelines explicitly prohibit practice of the above mentioned guidelines, contravening which will result into penalty under Chapter VII of the Act. It may also be noted that the guidelines are not in derogation of but in addition to other laws.
The guidelines complement the existing laws, such as:
● Consumer Protection Act, 2019: Section 2(47) defines ‘unfair trade practice’ and dark patterns can be construed to fall under this definition. Moreover, as aforementioned section 2(9) of the act defines ‘consumer rights’ and any manipulation of consumer choice would infringe them. Furthermore, section 2(28) mentions ‘misleading advertisement’ and deliberate concealment or deception of facts will fall under this.
● Consumer Protection (E-Commerce) Rules, 2020: This holds that a consumer’s consent can be obtained only through explicit actions, and consent cannot be recorded automatically. This is the duty of any business entity to comply with.
● Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 (CCPA Guidelines): These prevent misleading advertisements that obtain consumer consent through manipulative and deceptive means. The CCPA set up this regulatory authority and specifies conditions for advertisements that do not entail any misleading methods.
However, this regulation may be argued against as being a persuasive action. Highlighting texts may not be construed as manipulative texts, but simply design patterns to attract and persuade users. However, making users do something that they did not intend to do is malpractice regardless. Therefore, a line needs to be drawn between what constitutes persuasive actions and what constitutes deceptive actions. In its entirety, DoCA and ASCI, along with major stakeholders involved, are committed towards consumers’ interests’ protection and a need for a self-regulatory framework to combat manipulative practices, but a clear distinction is required between persuasive advertisement and dark pattern advertisement.
The ASCI borrowed from the user experience expert, Michael Craig, for suggestions as alternatives to the dark patterns. Services that allow certain features to be available only on certain devices, such as phones, should be altered to ease consumer navigation and use those features from their account pages. In case of hidden costs, there should be visibility of the cost at all times. Customers willingly accept costs, however, when they are hidden, it is disliked by them due to the secrecy. In the 2022 document, the ASCI takes a broader perspective to the dark patterns and suggests alternatives for disguised, or deceptive advertisement practices that might offend or frustrate the users.
3. FOREIGN JURISPRUDENCE
So far, there are mainly two countries who have an express legal framework to deal with dark patterns. Dark patterns are expressly prohibited in the European Union under the Digital Services Act (DSA), which was passed in October 2022. The Digital Services Act (DSA) applies to all digital services that link customers to products, services, and content. It offers multiple security measures for online customers in order to reduce the possibility of risks or damages and it places platforms within a framework of openness and responsibility.
Further, a number of newly passed US rules regulate and limit the usage of dark patterns as well. The California Consumer Privacy Act, the California Age-Appropriate Design Code Act, the Colorado Privacy Act, and Connecticut's Act Concerning Personal Data Privacy and Online Monitoring, for example, all specifically prohibit the use of "dark patterns." Draft regulations under California and Colorado's privacy laws include a number of examples of dark patterns, covering topics such as symmetry in choice and choice architecture, and establish that a business' intent not to be deceptive, as well as widespread use of a practice, do not make a dark pattern permissible.
The release of these regulations is a welcome step in realm of digital protection of the vast consumer base in India. Recognizing dark patterns and bringing them out of disguise not only warns those who practice them but also make the consumers aware of such manipulation. However, it remains to be seen how well these guidelines will bode. It is important to note that the guidelines are complementary to the existing laws. It’d be interesting to see its interplay with DGDP and other e-commerce regulators.
The teeth of these regulations and effective implementation will ultimately decide the success of these regulations. As of now, there are multiple giants such as Amazon, Instagram, Spotify etc. who follow these practices and these regulations are bound to have a major impact on their policies.
In a nutshell, the identification and prohibition at black letter law in the form of these regulations is the beginning of a safer digital marketplace and consumerism. If implemented rigidly, these regulations are bound to change the landscape of e-commerce.