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DARK PATTERNS AND ITS IMPACT ON BUSINESSES
With the increasing online population, there is also an increase in online fraud and deceit against various customers in the form of dark patterns. Keeping the origin of Dark Patterns in mind, the Ministry of Consumer Affairs, Food and Public Distribution, Government of India have recently established a 17-member task force that could delve into and develop guidelines for consumer protection to address the issue of Dark Patterns. The Ministry had also taken inputs from the Advertising Standards Council of India (ASCI) and consulted with various stakeholders like E-Commerce companies on the issuance of the guidelines that could curb the increasing menace of the dark patterns in India.
Accordingly, in the exercise of powers conferred under section 18 of the Consumer Protection Act, 2019, the Central Consumer Protection Authority (Ministry of Consumer Affairs) issued the “Guidelines for Prevention and Regulation of Dark Patterns, 2023”. According to these guidelines, "Dark Patterns" shall mean any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; designed to mislead or trick users into doing 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.[1]
The guidelines list the following dark patterns:
Footnotes [1] https://www.mondaq.com/india/dodd-frank-consumer-protection-act/1379670/understanding-dark-patterns-guidelines-for-consumer-protection#:~:text=The%20term%20'Dark%20Patterns'%20has,by%20subverting%20or%20impairing%20the [2] https://www.indiacode.nic.in/bitstream/123456789/15256/1/a2019-35.pdf [3] https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/The%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%2C%202023.pdf [4] https://www.ascionline.in/wp-content/uploads/2023/05/Guidelines-for-Online-Deceptive-Design-Patterns-in-Advertising.pdf
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- False urgency: Falsely stating or implying the sense of urgency or scarcity to mislead a user/consumer into making an immediate purchase or taking immediate action. This leads to a purchase made by manipulating user decisions by showing false popularity of a product or more limited quantities of a product than they actually are.
- Basket sneaking: Additional items such as payments to charity, products, or services are added at the time of checkout without the consent of the user. For example, the automatic addition of travel insurance while purchasing flight or train tickets.
- Confirm shaming: Using a phrase, video, audio, or any such means that creates a sense of fear, shame, or guilt in the mind of the user to manipulate them into continuing a particular service or buying a product. For example, organizations such as Ketto or adding a charity in the users' cart with the phrase “Charity is for the rich, I don’t care”.
- Forced action: Forcing a user to take an action that would require them to buy an additional good or service to buy the product or service originally intended by the user.
- Subscription trap: This kind of dark pattern includes making the cancellation of a subscription a very lengthy and complex procedure, hiding the cancellation option for a subscription, forcing a user to provide payment details to enable auto-debit for subscriptions, and making the instructions for cancellation confusing and ambiguous.
- Interface interference: Manipulates the user into making a decision favorable for the platform by obscuring the relevant, important information and highlighting only specific instructions.
- Bait and switch: Advertises a particular outcome based on users' actions but deceptively serves an alternative outcome.
- Drip pricing: Elements of prices are not revealed upfront or are revealed post confirmation of the purchase and a higher amount is charged than what was disclosed at the time of the checkout, advertising a product or service as free and not disclosing the other requirements or conditions attached to it or preventing a person from using a service already paid by him unless an additional purchase is made.
- Disguised advertisement: Masking advertisements or showing false advertisements.
- Nagging: An overload of requests, options, and interruptions are posed to the user.
- Trick Question: Deliberate use of confusing or vague language like confusing wording, double negatives, or other similar tricks, in order to misguide or misdirect a user from taking desired action or leading consumer to take a specific response or action.
- SaaS Billing : The process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible.
- Rogue Malwares: Using a ransomware or scareware to mislead or trick user into believing there is a virus on their computer and aims to convince them to pay for a fake malware removal tool that actually installs malware on their computer.
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- the right to be protected against the marketing of goods, products, or services which are hazardous to life and property;
- the right to be informed about the quality, quantity, potency, purity, standard, and price of goods, products, or services, as the case may be, to protect the consumer against unfair trade practices;
- the right to be assured, wherever possible, access to a variety of goods, products, or services at competitive prices;
- the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate fora;
- the right to seek redressal against unfair trade practices restrictive trade practices or unscrupulous exploitation of consumers; and
- (vi) the right to consumer awareness;
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- Conducting inquiries and investigations into violations of consumer rights and unfair trade practices on receiving a Complaint or Suo moto.
- Upon investigation, if the CCPA is satisfied that the rights of the consumers have been infringed or amount to unfair trade practices, the authority can directly to pass an order for the removal of such product or discontinuation of the service.
- Granting compensation or reimbursement to the consumer for the price paid for the product or service.
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- The businesses can create communication and systems that will respect the autonomy of the users and improve transparency which will enable the consumers to make well-informed choices;
- With the introduction of the guidelines, the Businesses can teach their Customers how to spot dark patterns. Industry standards for dark pattern-free user interfaces should be developed;
- To maintain compliance, businesses have to incorporate consent documentation or pop-up notifications on digital platforms;
- Businesses should provide thorough and personalized user experiences on digital platforms;
- Implementing encryption, multi-factor authentication, and regular security precautions which can also go a long way in improving the user interfaces;
- Businesses should also communicate their data privacy practices and attain explicit consent for the collection of the data;
Footnotes [1] https://www.mondaq.com/india/dodd-frank-consumer-protection-act/1379670/understanding-dark-patterns-guidelines-for-consumer-protection#:~:text=The%20term%20'Dark%20Patterns'%20has,by%20subverting%20or%20impairing%20the [2] https://www.indiacode.nic.in/bitstream/123456789/15256/1/a2019-35.pdf [3] https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/The%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%2C%202023.pdf [4] https://www.ascionline.in/wp-content/uploads/2023/05/Guidelines-for-Online-Deceptive-Design-Patterns-in-Advertising.pdf