Draft Guidelines for Prevention and Regulation of Dark Patterns

 The Department of Consumer Affairs, Government of India, has sought public comments on Draft Guidelines for Prevention and Regulation of Dark Patterns. Draft Guidelines are placed on the website of the Department of Consumer Affairs and are accessible through the link (https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%202023.pdf). Public comments/suggestions/feedback are solicited and may be provided to the Department within 30 days (until 5th October 2023).

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 Department of Consumer Affairs (DoCA) conducted an interactive stakeholders consultation on "Dark Patterns" on 13th June 2023, which was attended by Advertising Standards Council of India (ASCI), various e-commerce platforms, NLU’s, Law firms etc. In the meeting, there was a general consensus that Dark Patterns are a cause of concern and need to be dealt with proactively.

Thereafter, a letter dated 28.06.2023 was sent by the Secretary, Department of Consumer Affairs to E-commerce companies, Industry Associations and participants of stakeholder consultation, requesting them to refrain from incorporating any design or pattern in the online interface of their platform that may deceive or manipulate consumer choice and fall in the category of dark patterns. It strongly advised online platforms to not engage in ‘unfair trade practices’ by incorporating dark patterns in their online interface to manipulate consumer choice and violate ‘consumer rights’ as enshrined under Section 2(9) of the Consumer Protection Act, 2019.

A Task Force was subsequently formed 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. That 5 meetings of the members of the Task Force were held, wherein inputs for draft policy were taken from all the members of the task Force.

Based on these deliberations and draft Guidelines submitted by the Task force to the Department of Consumer Affairs, present Draft Guidelines for prevention and regulation of dark patterns have been drafted and are now being put up for public consultation. Proposed Guidelines shall be issued under section 18 (2) (l) of the Consumer Protection Act 2019.

The draft 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. Under the Guidelines, following Dark patterns have been specified:

1. “False Urgency” means falsely stating or implying the sense of urgency or scarcity so as to mislead a user into making an immediate purchase or take an immediate action, which may lead to a purchase

 

2. Basket sneaking” means inclusion of additional items such as products, services, payments to charity/donation at the time of checkout from a platform, without the consent of the user, such that the total amount payable by the user is more than the amount payable for the product(s) and/or service(s) chosen by the user

 

3. “Confirm shaming” means using a phrase, video, audio or any other means to create a sense of fear or shame or ridicule or guilt in the mind of the user, so as to nudge the user to act in a certain way that results in the user purchasing a product or service from the platform or continuing a subscription of a service.

 

4. “Forced action” shall mean forcing a user into taking an action that would require the user to buy any additional good(s) or subscribe or sign up for an unrelated service, in order to buy or subscribe to the product/service originally intended by the user

 

5. “Subscription trap” means the process of making cancellation of a paid subscription impossible or a complex and lengthy process including similar other practices

 

6. “Interface interference” means a design element that manipulates the user interface in ways that (a) highlights certain specific information; and (b) obscures other relevant information relative to the other information; to misdirect a user from taking an action desired by her.

 

7. “Bait and switch” means the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.

 

8. “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

 

9. “Disguised advertisement” means a practice of posing, masking advertisements as other types of content such as user generated content or new articles or false advertisements.

 

10. Nagging”shall mean a dark pattern due to which users face an overload of requests, information, options, or interruptions; unrelated to the intended purchase of goods or services, which disrupts the intended transaction.

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.  The objective of the Guidelines is to identify and regulate such practices which tend to manipulate or alter consumer choices, often by using deceptive or misleading techniques or manipulated user interfaces/web designs. Thus, the proposed Guidelines seek to oversee such practices which are prejudicial to the consumer interests.

The department is committed to safeguarding consumer interests and promoting a fair and transparent marketplace, especially in the increasingly expanding and penetrative digital space. The proposed guidelines will further strengthen the industry and protect consumer interests.

For more information on the new guidelines, visit the link: (https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%202023.pdf).

****