Table of Contents
Context: The Centre has sought public comments on the draft guidelines for prevention and regulation of “dark patterns” on the Internet, particularly in e-commerce platforms.
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- The draft Guidelines for Prevention and Regulation of Dark Patterns have been framed after detailed deliberations with all stakeholders including e-commerce platforms, law firms, Government and Voluntary Consumer Organizations (VCO’s).
- The objective of the Guidelines is to identify and regulate dark patterns. Thus, the proposed Guidelines seek to oversee such practices which are prejudicial to the consumer interests.
- Guidelines would be made applicable to all the persons and online platforms including sellers and advertisers.
- Under the draft guidelines, certain specified dark patterns have been defined and illustrated with examples, to bring more clarity.
What are Dark Patterns?
- Dark patterns are deceptive and manipulative user interface (UI) design techniques employed in websites, apps, and other digital interfaces to trick or coerce users into taking actions they might not otherwise want to take.
- The term was coined by Harry Brignull, a user experience (UX) designer, in 2010.
- These strategies are designed to exploit certain cognitive and behavioral biases to persuade users into purchasing goods and services they would typically not pay for.
- These patterns are designed to serve the interests of the website or app owner, often at the expense of the user’s experience or well-being.
- Impacts of dark patterns:
- Undermining consumer autonomy: Dark patterns compromise consumers’ personal autonomy because they lead consumers to make choices they may not otherwise have made.
- Privacy Risks: Privacy-intrusive dark patterns force users to share more personal data unintentionally, increasing privacy risks.
- Unfair competition: Firms using dark patterns gain an unfair advantage without offering better quality, impacting fair competition.
- Financial loss: Dark patterns, such as basket sneaking, hidden costs, or drip pricing, lead to users spending more than they may have otherwise intended.
- Psychological harm: The dark patterns cause psychological harm like emotional distress, such as frustration, feelings of shame and being tricked.
- Trust erosion: Dark patterns erode trust in online businesses, potentially undermining consumers’ faith in markets over time.
Types of Dark Patterns
Under the draft guidelines, the Ministry of Consumer Affairs has identified ten types of dark patterns being used by e-commerce companies:
- False Urgency: Creates a sense of urgency or scarcity to pressure consumers into making a purchase or taking an action.
- Basket Sneaking: Dark patterns are used to add additional products or services to the shopping cart without the user’s consent.
- Confirm Shaming: Uses guilt to make consumers adhere; criticizes or attacks consumers for not conforming to a particular belief or viewpoint.
- Forced Action: Pushes consumers into taking an action they may not want to take, such as signing up for a service in order to access content.
- Nagging: Persistent criticism, complaints, and requests for action.
- Subscription traps: Easy to sign up for a service but difficult to quit or cancel; option is hidden or requires multiple steps.
- Bait & Switch: Advertising a certain product/ service but delivering another, often of lower quality.
- Drip pricing: Means a practice whereby-elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; and/or other such practices.
- Disguised advertisements: Designed to look like content, such as news articles or user-generated content.
- Interface Interference: This tactic involves making it difficult for consumers to take certain actions, such as canceling a subscription or deleting an account.
Some examples of companies using dark patterns
- Amazon: Amazon has been criticized for various dark patterns, including making it difficult for users to cancel Amazon Prime subscriptions and opting them into Amazon Prime trials without clear consent.
- Facebook: Facebook has faced backlash for its privacy settings and the way it encourages users to share personal information. Users have accused the platform of making it challenging to adjust privacy settings in a way that truly protects their data.
- LinkedIn: LinkedIn has been criticized for sending frequent and often misleading email notifications to encourage users to engage with the platform, leading some users to describe their email communications as spammy.
- Snapchat: Snapchat faced criticism for making it challenging for users to delete their accounts and for its Snapstreaks feature, which encourages users to keep sending messages to maintain a streak with their friends.
Various Challenges in Regulating Dark Patterns
- Lack of Specific Regulations: Dark patterns are a relatively new issue, and there are no dedicated regulations that specifically address them in most countries.
- Enforcement Difficulties: Enforcing laws against dark patterns can be challenging due to the evolving nature of digital design and the sheer volume of online platforms. Regulatory bodies may lack the resources and expertise needed for effective enforcement.
- Scope of Existing Laws: Some dark patterns may not fall clearly within the scope of current laws that prohibit deceptive commercial practices. Determining the line between controversial marketing techniques and illegal practices can be subjective.
- Global Nature of the Internet: The internet operates globally, and dark patterns can transcend national borders. Regulating them effectively requires international cooperation and consistency in legal frameworks.
Global Efforts to Tackle Dark Patterns
- In 2022, the European Data Protection Board released guidelines that gave designers and users of social media platforms practical guidance on how to spot and avoid dark patterns that are in violation of General Data Protection Regulation (GDPR) laws.
- In the U.S., the Federal Trade Commission [FTC] has taken note of dark patterns and the risks they pose. In 2022, the regulatory body listed over 30 dark patterns, many of which are considered standard practice across social media platforms and e-commerce sites.
- In 2021, California passed amendments to the California Consumer Privacy Act, banning dark patterns that made it difficult for consumers to exercise legal rights, like opting out of the sale of their data.
- In 2019, the UK issued a set of guidelines which prohibited companies from using dark patterns which influence underage users to have low privacy settings. These guidelines were later made enforceable under its Data Protection Act, 2018.
- User Empowerment: It is crucial to raise awareness among users about dark patterns and empower them to recognize and avoid manipulative tactics employed by websites and apps.
- Transparency: Online platforms should adopt ethical design guidelines, conduct audits, and discourage dark pattern use voluntarily.
- Stronger Laws: Governments should create specific rules against deceptive design, update consumer protection and data privacy laws, and establish robust legal mechanisms to address dark patterns.
- Global Collaboration: Recognize that the internet operates globally, and cooperation among countries and international bodies is essential to address dark patterns effectively.
- Reporting of Cases: Users should be encouraged to report instances of dark patterns they encounter, and platforms should establish clear channels for users to provide feedback and report manipulative practices.