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Sneaking items into online shopping carts; making the cancellation of a paid online subscription impossible; creating a sense of “false urgency”: These are among the deceptive strategies flagged in a draft guidelines released Thursday by the Union government to curb “dark patterns” used by online platforms.
These dark patterns mislead people into doing something they originally did not wish to do, such as paying for items or services they did not intend to buy.
The draft document, released by the Department of Consumer Affairs, is available on the department’s website where people can leave feedback until October 5. The objective is to clearly identify and define tactics as dark patterns so that the Ministry of Consumer Affairs can act against platforms indulging in this under Section 18 of the Consumer Protection Act, 2019.
The nine-page draft document defines “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.”
For instance, “false urgency” is a dark pattern under which the online seller makes false claims of limited stock (“hurry, only two items left!”) which misleads the user/buyer into making an immediate purchase or act immediately.
The draft guidelines, once notified, shall apply to all platforms systematically offering goods or services in India, advertisers and sellers.
The draft guidelines propose prohibitions against engaging in dark patterns.
The document specifies 10 types of dark patterns: False urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, disguised advertising and nagging.
“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 statement said.
The statement said: “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,” it said.
“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,” it said.
“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,” it said.
“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,” it said.
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;
ii. Stating that quantities of a particular product or service are more limited than they actually are.
2. Basket sneaking – 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.
Provided that 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.
Explanation: The term “necessary fees” means, the fee which is necessary to fulfill the completion of the order such as delivery charges, gift wrapping, additional taxes on the product charged by the government or any other charges which are explicitly disclosed to the consumer at the time of purchase.
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 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 – 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 – Making cancellation of a paid subscription impossible or a complex and lengthy process; or
ii. hiding the cancellation option for a subscription; or
iii. forcing a user to provide payment details and/or authorization for auto debits for availing a free subscription;
iv. making the instructions related to cancellation of subscription ambiguous, latent, confusing, cumbersome.
6. Interface interference – 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 – The practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
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 amount 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
Explanation: A marketplace e-commerce entity shall not be liable for price fluctuations to the extent attributable to prices changes by third party sellers or due to other factors beyond their control.
9. Disguised advertisement – A practice of posing, masking advertisements as other types of content such as user generated content or new articles or false advertisements.
Explanation:
a) For the purposes of this clause, the expression “disguised advertisement” also includes misleading advertisement as provided under section 2 (1)(28) of the CP Act 2019 and the “Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022” shall also be applicable to it.
b) In relation to content posted by a seller or an advertiser on a platform, the responsibility of making the disclosure that such content is an advertisement shall be on such seller or advertiser.
10. Nagging – 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.
