Centre bans e-com platforms from using ‘dark patterns’: What are these?

The Union Ministry of Consumer Affairs has banned “dark patterns”, a method e-commerce platforms use to manipulate consumers’ decision-making and trick them into making choices in favour of products or services they don’t have the intention to buy but end up buying them.

The Central Consumer Protection Authority (CCPA) on Thursday (November 30) issued a gazette notification specifying guidelines which define and identify 13 dark patterns that e-commerce companies use to influence consumer choices. ‘Guidelines for Prevention and Regulation of Dark Patterns’ issued by the CCPA are applicable to all platforms, and even advertisers and sellers, offering goods and services in India.

Resorting to dark patterns will amount to misleading advertisement or unfair trade practice or violation of consumer rights. The penalty will be imposed as per the provisions of the Consumer Protection Act, the notification said. “In the emerging digital commerce, dark patterns are increasingly being used by the platforms to mislead the consumers by manipulating their buying choices and behaviour,” Consumer Affairs Secretary Rohit Kumar Singh said.

The notified guidelines will ensure clarity in the minds of all stakeholders, including buyers, sellers, marketplaces and regulators, as to what would tantamount to be unfair trading practices and liable for punishment under the Consumer Protection Act, he added.

“No person, including any platform, shall engage in any dark pattern practice,” the notification said.

The Ministry of Consumer Affairs in June-end constituted a task force after the Department of Consumer Affairs, along with the Advertising Standards Council of India (ASCI), had consultations with various stakeholders. The department then released a list of 10 specified dark patterns in October, which were upgraded to 13 in the final guidelines notified by the government on November 30.

Here is a rundown on the dark patterns:

What are dark patterns?

The CCPA guidelines define dark patterns as “any practices or deceptive design pattern using user interface or user experience interactions on any platform that is 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”.

“A dark pattern is a user interface that has been crafted to trick or manipulate users into making choices that are detrimental to their interest – such as buying a more expensive product, paying more than what was initially disclosed, sharing data or making choices based on false or paid-for reviews, and so on,” the ASCI observed in a 2022 document titled ‘About Dark Patterns’, which also identified 12 types of dark patterns. “E-commerce companies spend millions of dollars in designing user interfaces and navigation paths that eventually lead to more business,” the ASCI document said.

Specified dark patterns:

The guidelines have put the following dark patterns under its banned list. These are false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, disguise advertisement, nagging, trick question, SaaS billing and rogue malwares.

1. False urgency: 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, including (i) showing false popularity of a product or service to manipulate user decision and (ii) stating that quantities of a particular product or service are more limited than they actually are.

This is done to falsely create a time-bound pressure to make a purchase by “describing a sale as an ‘exclusive’ sale for a limited time only for a select group of users”.

2. Basket sneaking: A practice in which companies include 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. However, the addition of free samples or providing complimentary services or addition of necessary fees disclosed at the time of purchase shall not be considered basket sneaking, according to the guidelines.

3. Confirm shaming: 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 consumer, so as to nudge the consumer to act in a certain way that results in purchasing a product or service from the platform or continuing a subscription of a service.

4. Forced action: The guidelines define it as forcing consumers into taking an action that would require them 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. For instance, forcing a user to subscribe to a newsletter in order to purchase a product.

5. Subscription trap: The process of making cancellation of a paid subscription impossible or a complex and lengthy process; or hiding the cancellation option for a subscription; or forcing a user to provide payment details and/or authorisation for auto debits for availing a free subscription; or making the instructions related to cancellation of subscription ambiguous, latent, confusing and cumbersome.

6. Interface interference: A design element that manipulates the user interface in ways that (a) highlight 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.

For instance, designing a light coloured option for selecting “No” in response to a pop-up asking a user if they wish to make a purchase or concealing the cancellation symbol in tiny font or changing the meaning of key symbols to mean the opposite.

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

A seller, for instance, offers a quality product at a cheap price but when the consumer is about to pay or buy, the seller states that the product is no longer available and instead offers a similar looking product but more expensive.

8. Drip pricing: A practice whereby (i) elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; or (ii) revealing the price post-confirmation of purchase, i.e. charging an amount higher than the one disclosed at the time of checkout, or (iii) a product or service is advertised as free without appropriate disclosure of the fact that the continuation of use requires in-app purchase; or (iv) a user is prevented from availing a service which is already paid for unless something additional is purchased.

For instance, a consumer has purchased a gym membership. In order to actually use the gym, the user must purchase special shoes or boxing gloves from the gym. But the same was not displayed at the time of offering the gym membership.

However, there is a rider to this rule. A marketplace e-commerce entity shall not be liable for price fluctuations to the extent attributable to price changes by third party sellers or due to other factors beyond their control.

9. Disguised advertisement: A practice of posing, masquerading advertisements as other types of content such as user generated content or new articles or surrogate advertisements. Such disguised ads are designed to blend with the interface in such a way that the consumers are tricked into clicking on them.

10. Nagging: This is a dark pattern practice that intends to disrupt and annoy a consumer by repeated and persistent interactions, in the form of requests, information, options, or interruptions, to effectuate a transaction and make some commercial gains, unless specifically permitted by the user.

Apart from these specified black patterns, which were defined in the draft guidelines, three more patterns have been added to the list. These are Trick Question, SaaS billing and Rogue Malware.

11. The guidelines define ‘Trick Question’ as the deliberate “use of confusing or vague language like confusing wording, double negatives, or other similar tricks, in order to misguide or misdirect” a consumer.

12. ‘SaaS billing’ is used in a software-as-a-service (SaaS) business model, whereby a e-commerce company generates and collects payments from gullible consumers on a recurring basis by using positive acquisition loops clandestinely.

13. Last but not least, companies may also use ‘Rogue Malwares’, which the guidelines define as ransomware or scareware. Such malware intends to trick consumers into believing that there is a virus in their computer and they end up buying a fake malware removal tool which ends up installing malware in their system.

(With agency inputs)