Dark Patterns: A cause of concern

Introduction: 

Dr. Harry Brignull coined the term “Dark Pattern” in 2010. According to him, the term refers to a deceptive or manipulative trick used in software or on a website to compel the user to complete an action they would not otherwise have done. The concept of Dark Patterns emerged from the idea of Design Patterns, and Harry recognized the existence of another type of pattern used for deliberate deception and manipulation, which he then termed as a Dark Pattern. 

After the rapid advent of novel technologies, the development of Dark Patterns is also at an alarming rate. For instance according to a study conducted by the Advertising Standards Council of India(ASCI), in 2020- 2021, while analyzing the advertisement process found that around 29 per cent of the said advertisements are being accompanied as disguised Advertisements or disguised Ads.  

Privacy Concerns in Dark Patterns: 

According to a research report titled “(Un)Informed Consent: Studying GDPR Consent Notices in the Field,” in a sample of 1000 German-based websites, approximately 57.4 percent of the websites employed “Nudging” (overloading users with requests, options, and interruptions unrelated to the intended business of the users). This action tricked those users into providing consent, which blatantly violated Article 4(11) of GDPR. This article specifically mandates that the data subject’s consent must be freely given, informed, specific, and reflect the unambiguous indication of the data subject’s intention.

According to the results of another official research screening conducted by the EU Consumer Protection Cooperation Network on 399 websites, they found that nearly 40 percent, or 148 of the 399 online shopping websites, employed manipulative practices to exploit customers’ vulnerabilities and trick them.

The same concern has been observed in EDPB Guidelines on Dark Patterns and social media platform interfaces where the board observed that the dark patterns are capable of hindering the user’s ability to provide valid consent under Article 4 (11) of GDPR and in turn the said act is blatantly violating the right to privacy from consumer and data protection perspective.

Further, according to Article 25 (1) of the EU Digital Services Act, the providers of the online platform shall not organize, design or operate their online interfaces in a way that deceives the users of the services or impairs the ability to make free and informed decisions.

Further section 7004 of CPRA explicitly mentions that a business that obtains consent through dark patterns does not constitute valid consent. 

Regulation of Dark Patterns in Indian Landscape: 

To regulate this threatening technological advancement, the Department of Consumer Affairs (DoCA) and the Advertising Standard Council of India (ASCI) held consultations with stakeholders on “Dark Patterns” and established a task force to submit recommendations for regulating these Dark Patterns. 

Later on, September 5, 2023, based on the recommendations received from the task force and other relevant industrial stakeholders. The Department of Consumer Affairs (DoCA) has released a draft of guidelines on the Prevention and Regulation of Dark Patterns”. 

According to 2 (e) of the said guidelines, the term “Dark Patterns” defines any practice or deceptive design pattern that uses UX/UI interactions on any platform to mislead users into doing something that they originally did not intend to do. This action tricks users by compromising or hindering their consumer autonomy and decision-making power, thereby constituting the creation of misleading advertisements, unfair trade practices, or, in some cases, a violation of consumer rights.

Section 4 of the said Regulation made a blanket ban on every person including Platforms operating in India, Advertisers and sellers not to engage in any dark pattern. 

Apart from Dark Patterns, the regulation also defined a new concept known as “specified Dark Patterns” and Annexure 1 of the regulation contains 10 dark patterns as Specified Dark Patterns. 

According to Annexure 1, the Specified Dark Patterns are: 

• False urgency 
• Basket sneaking
• Confirm shaming
• forced Action
• Subscription Trap
• Interface Interference
• Bait and Switch
• Drip pricing
• disguised Advertisement and 
• Nagging. 

Apart from this regulation, on June 15, 2023, the Advertisement Standard Council of India published a ” Guideline for Online Deceptive Design Patterns in Advertising “ and the said guidelines observed the difficulty in developing a universally accepted definition for Dark Patterns because of the underlying challenge in considering a wide range of activities and practices as Dark Patterns or not. 

This Guideline specifically mandates that certain conditions must be followed during digital advertising, such as Drip Pricing, bait and switch, false urgency, and disguised Ads. It is worth noting that the draft regulation released by the Consumer Affairs Ministry extensively defines these four practices. However, the guidelines released by ASCI not only define these practices but also mandate and prohibit specific compliance requirements when employing these practices. For instance: 

Drip Pricing:

Draft Regulation: The term “Drip Pricing” has been defined under Draft regulation as: 

A Practice whereby: 

• The elements of the price are not being revealed upfront; instead, they are surreptitiously disclosed within the UX design.
• Charging a higher price or revealing the price of the product during post-confirmation of purchase or at the time of checkout or 
• Advertising the Product or service as free without properly disclosing the fact that the said free  use of such service or product or continuation of such free use requires an in-app purchase or 
• Preventing a user from availing of an already paid service unless they make an additional purchase. 

ASCI Guideline: Prices that are being quoted in the advertisements and e-commerce sites must include non-optional taxes, duties, fees and other charges that apply to all or most buyers to prevent drip pricing. Failing to provide complete and upfront price representation and all applicable charges will amount to misleading consumers. 

Bait and Switch: 

Draft Regulation: The regulation defines the term “Bait and Switch” as the practice of advertising a particular outcome based on the action of the user but deceptively providing an alternative outcome.

ASCI Guidelines: It doesn’t provide any specific guideline to prevent this deceptive practice, rather it provides a definition which is similar to that mentioned in the draft regulation. 

False Urgency:

Draft Regulation: The term “False urgency “means falsely implying the sense of urgency or scarcity to mislead a user to make an immediate purchase or to take an immediate action which may lead to a purchase, including showing false popularity of the said product and exaggerating limited quantities of the availability of the product or service to create to a sense of scarcity. 

ASCI Guideline: If there is any complaint regarding misleading users with limited quantity claims, advertisers must demonstrate that the product was indeed in limited supply at the time of advertising.

Draft Regulation: The term “disguised Advertisement” refers to the practice of posing or masking an advertisement in the form of user-generated content news articles or false advertising. The term disguised advertisement includes the term “misleading advertisement” mentioned under section 2 (1) (28) of the Consumer Protection Act 2019 and “Guidelines for Misleading Advertisements and Endorsements for Misleading Advertisements 2022. 

Further, the explanation clause mandates that the sellers or advertisers posting content on a platform are responsible for clearly disclosing that the said content is an advertisement. 

ASCI Guideline: Must disclose that the said editorial content or organic content is an advertisement, Ex: Influencer posts, paid reviews, or ads placed in a manner which appears to be editorial content. 

Conclusion: 

The newly enacted DPDP Act 2023, in addition to the draft regulations from the Ministry of Consumer Affairs and ASCI guidelines, ensures transparency and data minimization as an inherent obligation that data fiduciaries must follow. This obligation limits fiduciaries from participating in deceptive practices, which include the subscription trap, where they entice users with a free trial and compel them to pay because of challenges in canceling the service. Section 6(4) of the DPDP Act 2023 explicitly forbids this deceptive practice and establishes that Data Principals have the right to withdraw their consent at any time, with the process of doing so being as straightforward as granting consent.

The USA FTC trade commissioner Rohit Chopra, in a statement titled ” Regarding Dark Patterns in the Matter of Age of Learning “, observes that Digital Deception should not be a viable American Business Model and mentions the intention of not replicating the whack-a-mole strategy ( being active when a mole or an issue appears)  and demands the need of employing every resources and tools available within FTC to tackle the problem of unlawful Digital Dark Pattern. 

Apart from handling digital Dark Patterns, it is high time that it is inherent to bestow an egalitarian approach to regulate AI-empowered Dark Patterns because the rapid increase of AI-empowered Dark Patterns could lead to sophisticated deceptive practices like deceiving users that a human is interacting with them but in reality, it is an AI-based system and false appearance any AI generated as authentic information the demand of stringent regulations from multiple regulatory agencies is inherent to tame this malicious practice and honour the rights of the consumers.