From Trickery to Transparency

**Ayushi Srivastava and Manu Jalaj

Introduction 

The Ministry of Civil Aviation in October 2023, asked Indigo, one of the prominent airlines in India, occupying 60% of the market share, to rectify its website following a slew of complaints regarding the said airline’s practice of deceiving customers. The airline is allegedly making unintentional purchases when booking flight tickets. Such unfair trade practices employed by Indigo were addressed as dark patterns in the complaints. In 2010, UX consultant Harry Brignull coined the term ‘dark patterns’ to describe “user interfaces that have been designed to trick users into doing things they wouldn’t otherwise have done”. Primarily it is a design or user interface tactic deliberately created to manipulate or deceive users into making decisions or performing actions that may not be in their best interest, for example, an online platform for booking flight tickets that displays the phrase “I will stay unsecured” if a user does not add insurance to their cart. Dark patterns are often criticized for influencing choices and hindering their decisional autonomy by concealing full information about products and services. Throughout the world, there has been a surge in Internet users, and usage with dark patterns has been a common element in many apps and websites, prompting regulators to begin addressing and restricting their use. In this light, the Guidelines on Dark Patterns by the Department of Consumer Affairs, Ministry of Consumer Affairs Food and Public Distribution portends a welcoming step. 

Guidelines for Prevention and Regulation of Dark Patterns, 2023

In 2023, under Section 18 (2) (l)  of the Consumer Protection Act of 2019,(CPA) the Department of Consumer Affairs of the Ministry of Consumer Affairs, Food and Public Distribution along with the Advertising Standards Council of India notified the draft Guidelines for Prevention and Regulation of Dark Patterns, 2023 (Guidelines). It is aimed at clamping down on the usage of dark patterns by sellers, advertisers and platforms that systemically offer goods and services in India. It applies not only to businesses based in India but also to those operating outside India that target Indian citizens for selling goods or services. The key components of dark patterns as defined under Section 2(e) of the Guidelines are: a) they are deceptive design practices; b) found on any platform; c) aimed at misleading or tricking users into actions they did not originally intend; d) achieved by manipulating the consumer’s autonomy and decision-making ability; and e) considered unfair trade practices or violations of consumer rights. The 2023 Guidelines in Annexure- I enumerate specified dark patterns which include “false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, nagging, trick questions, Saas billing and rogue malware.” Further, under Section 6 of the Guidelines, if dark pattern practices are already regulated by existing laws or regulations in that case, the  Guidelines will complement rather than override them emphasising that these guidelines will apply alongside any other relevant laws. Furthermore, as per Section 7, Guidelines “in case of any ambiguity or dispute regarding the interpretation of these guidelines, the final decision rests with the Central Consumer Protection Authority” (CCPA).

Impact on consumers, sellers, platforms and advertisers

Businesses like healthtech apps, travel bookings, fintech etc. have long tried to influence consumer’s will by utilising various psychological techniques such as false urgency, basket sneaking and confirm shaming. While such techniques were limited to only physical stores during the initial period, now, with the growing era of technology these techniques have taken the shape of dark patterns. While the CPA and the CCPA used to monitor the practice of dark patterns initially, the introduction of the Dark Pattern Guidelines has made monitoring and reporting of such dark patterns easier. While initially the consumers, who were unaware of these dark patterns, would approach the court being ignorant of the fact that they have fallen prey to one such dark pattern, this is no longer the case as seen in Pankaj Chandgothia Vs. The Coffee Bean & Tea and Ors. where the plaintiff stated that the messages relating to the loyalty points that were sent to him after visiting the café were a form of dark pattern under the Dark Pattern Guidelines. These guidelines not only restrict the practice of dark patterns but also introduce the concept of the same to the general public. One such example is Supriyo Ranjan Mahapatra v. Amazon Development Centre India, where the complainant had placed an order for a laptop, which was originally Rs. 23,499, that was displayed for Rs. 190, and after the order was confirmed, the seller then cancelled the order stating that there was a “pricing issue”. While the following case could be considered as an example of ‘bait and switch’ practice, as the seller portrayed false information just to lure in the customer, however since the complainant was unaware of the same, he could only claim compensation for the negligent services and unfair trade practice by the opposite party. The Consumer Dispute Redressal Commission also delivered the judgement in favour of the complainant stating that the complainant has suffered mental agony and harassment due to the unavailability of the laptop as it caused the complainant an educational backlog.

As per the Guidelines, a platform has a similar meaning as defined in Consumer Protection (E-Commerce) Rules, 2020 (Rules) i.e., “an online interface in the form of any software including a website or a part thereof and applications including mobile applications”. It is imperative to say that the online platforms, which offer goods and services in India, are one of the most impacted entities, as even the Department of Consumer Affairs sought their opinion on the draft guidelines while considering them as one of the major stakeholders. Even before implementing the 2023 Guidelines, the Department of Consumer Affairs and the Advertising Standard Council of India have been recognizing e-platforms as major stakeholders along with various other industries, and have been directing them to inculcate self-regulatory mechanisms and establish ethical design guidelines. Central to the definition of dark patterns in the guideline, these platforms can no longer indulge in a practice that could influence the consumer to take an action that they did not intend to do, which includes “accept cookies” pop-up, display of option favourable to the platform in bright colour, the addition of extra cost through pre-ticked add-on services etc. 

The Guidelines identify ‘seller’ as ‘product seller’ under Section 2(37) of CPA and advertisers as defined under Section 2(b) of the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 (Guidelines, 2022). These complement the Rules, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 and CPA. The Rules primarily cover unfair trade practices, false representation and adherence to advertised standards and the CPA broadly covers the physical and functional aspects of products, focusing on product safety, warranties, improper labelling, and failure to communicate proper usage instructions. Unlike the Rules and the CPA, the Guidelines added liability for deceptive design tactics for the sellers, ensuring fair and transparent digital interfaces. Under the Guidelines, 2022 advertisers had the obligation that all claims are substantiated and based on verifiable facts, should not mislead consumers or exploit their lack of experience and the endorsements must be genuine and based on adequate information. Further, the advertisements should be truthful, honest, and not misleading and any material connection between the endorser and the advertiser must be disclosed. With the introduction of the Guidelines deceptive practices such as “dark patterns” intended to mislead customers were explicitly prohibited in advertisements. The Guidelines are an expansion aiming to address specific deceptive practices or any design that misleads consumers or impairs their autonomy, decision-making, or choice. 

Navigating the ambiguities in the guidelines and analysing the possible challenges

The Guidelines can be lauded as a significant step in the consumer protection domain with the burgeoning use of e-platforms however, they suffer from myriad loopholes, placing their implementation in a limbo. One of the first challenges one may face is interpreting the phrase “Dark Patterns”. Section 2(e ) of the Guidelines describes Dark Patterns as “any practices or deceptive design pattern using user interface or user experience interactions platform that is designed to mislead or trick users to do something they originally did not intend or want to do”, which requires people to ascertain the intention of such user interfaces. Since intentions are subjective and non-quantitative, interpreting such intentions becomes challenging. In such cases, one can utilise Annexure-1 of the guidelines to draw inferences from the facts provided until any revisions.  

The sole provision in the Guidelines that imposes an obligation for its compliance, i.e., Section 5, is restricted to the dark patterns outlined in Annexure I. Thus the Guidelines fail to specify thresholds of punishment or fines for dark patterns, despite imposing such obligations. The Guidelines prescribe that Annexure-I is merely indicative and the dark pattern practices outlined therein were meant to be solely non-binding guidance and should not be constructed as legal interpretation. The inclusion in Annexure-I was likely made to address concerns about the increased regulatory burden; however, this addition ultimately weakens enforceability and introduces a contradiction within the Guidelines. However, it is important to note, that while the 2023 Guidelines include merely 13 ‘specified dark patterns’. It fail to consider the presence of several other types of dark patterns, some of which were also pointed out by the report of the Advertising Standards Council of India, including Roach Motel, Checkbox Treachery, Roadblock etc. The non-inclusion of these does not render the guidelines bootless, provided that the CCPA notify other forms of dark patterns from time to time. Section 2(i) includes the phrase “other dark pattern that CCPA may specify from time to time or otherwise” while defining the term ‘specified dark patterns’, thus expanding the scope of the guidelines.

Further, Section 7 of the Guidelines portrays the CCPA’s decision as final “in case of any ambiguity or dispute in the interpretation of the guidelines”. In contradiction, Section 10 of the CPA states that the CCPA  “regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers and to promote, protect and enforce the rights of consumers as a class.”

Dark pattern practices are not just used to persuade consumers to make purchases, but they can also be employed to obtain consumer consent through psychological manipulation and deceptive methods, which raises significant privacy concerns. An example of this can be when a platform employs dark patterns such as ‘forced action’ wherein a mandatory action has to be taken to proceed further with the platform. Such mandatory actions can often involve requesting consumer’s consent for their name, details, and location. Dark patterns such as these usually gather extensive user data by requesting information from individuals not needed for a specific transaction which is often shared with third parties without the individual’s consent.  Apart from this, one may argue that the following, Guideline by utilising the term ‘user’, and not ‘consumer’, when describing the dark patterns, hinders many users from approaching the CCPA under Section 7. As per Section 2 (j) of the Guidelines a ‘user’ “shall mean any person who accesses or avails any computer resource of a platform”, while under CPA Section 2 (7), a consumer is the one who either buys goods or hire or avail any services, and while the CPA acknowledges the hiring or availing of services through online mode in its definition of ‘consumer’, what it fails to include is the process of ‘accessing’ the resources of a platform, a key component used to define the ‘user’. However, if we acknowledge the presence of Section 17 of the CPA, which discusses the competent authorities to file a complaint, we find a recourse for the issue mentioned above. Under Section 17 of the CPA, it is mentioned that a complaint can be filed in case of “violation of consumer rights or unfair trade practices or false or misleading advertisements which are prejudicial to the interests of consumers as a class“. Thus, under Section 2 (e) of the Guidelines dark patterns amount to “misleading advertisement or unfair trade practice or violation of consumer rights“. Thus, under Section 17 of the CPA, users can approach the CCPA after encountering a dark pattern, even if they only interacted with the resources briefly. The constant use of the terms ‘user’ and ‘consumer’ interchangeably in Annexure-1 of the Guidelines can create an ambiguity in the application of the said guidelines.

Conclusion 

In conclusion, the introduction of the 2023 Guidelines has made a significant impact in the digital marketplace, by attempting to prohibit deceptive design practices employed by platforms, sellers and advertisers, and by bringing to light the usage of dark patterns before the general public. By defining and prohibiting the usage of various dark patterns the guidelines have done commendable work. However, the Guidelines will also lead to an increase in regulatory burden on user interfaces. The user interfaces outlined in the 2023 Guidelines are also covered under various other existing laws. Online platforms, also fall under the category of intermediaries under Section  2(w) of the Information Technology Act 2000 (IT Act).  Further, “platforms, systematically offering goods or services, advertisers and sellers” would fall under the head of e-commerce under  Section 2(16) of the CPA. Additionally, there are general obligations applicable across all platforms, sellers and advertisers under the Digital Personal Data Protection Act 2023 (DPDP Act) in case they qualify as Data Fiduciaries. 

Some of the pre-existing laws already regulate dark patterns. CPA under the pretext of “unfair trade practices” and “misleading advertisements”, as defined under Sections 2(47) and 2(28) respectively, manage dark patterns such as “drip pricing, disguised advertisements, false urgency, etc.” The Guidelines, 2022 apply to all kinds of advertisements, specifically dealing with free claims advertisements, bait advertisements and surrogate advertisements which are also a kind of dark pattern. Dark patterns such as deceptive practices manipulating individual consent and practices dealing with the privacy of individuals are also addressed in the DPDP Act.  It is, therefore, suggested that the existing frameworks be utilized effectively before introducing additional regulatory obligations. In case there is a need to introduce legislation explicitly targeting dark patterns India must follow an approach similar to the European Union (EU). The EU has established comprehensive legal frameworks such as the General Data Protection Regulation (GDPR), Digital Services Act (DSA), Digital Markets Act (DMA), and Unfair Commercial Practices Directive (UCPD) to address and tackle dark patterns. These legislations provide clear definitions of dark patterns and what constitutes deceptive practices which helps in understanding the obligations of user interfaces. Regulations like the DSA and DMA impose obligations on online platforms and service providers to ensure transparency in their practices which fosters greater accountability and promotes fairer digital market practices. Further, the EU’s Consumer Protection Cooperation (CPC) Network facilitates cooperation among national authorities to enforce consumer protection laws consistently across EU member states which ensures that companies operating across borders adhere to the same standards, preventing regulatory arbitrage and enhancing consumer trust. Conclusively, the EU’s regulations on dark patterns contribute to a fairer and more transparent digital environment, where consumers can make informed choices without being misled or exploited.

**Ayushi Srivastava and Manu Jalaj are 3rd Year Students at National Law University Odisha

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.