Opinion Consumers are manipulated on the web — they can be protected
Consumers should be shielded from tactics that annoy them into making a choice they otherwise wouldn’t. For the same, several of these tactics need to be identified explicitly in the new draft guidelines the government has put out
The Department of Consumer Affairs Guidelines on dark patterns come at a time when regulators globally are tackling this problem. 
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Earlier this month, the Department of Consumer Affairs released draft guidelines regulating “dark patterns” on online platforms. “Dark patterns” refer to user interface or experience (UI/UX) designs and practices that subtly nudge consumers into doing things they might not have otherwise done. For example, consider an OTT platform that hides its subscription cancellation option within a labyrinth of links and pages, making such cancellation a tedious task, and ensuring that most average consumers would continue with the service, even if they wouldn’t otherwise. These tactics are sometimes so subtle and layered that the average consumer does not realise that they are subject to them. Such practices are widespread and deeply embedded in the daily consumer experience of websites, mobile applications, e-commerce platforms, and social media. In 2019, for instance, a Princeton University study sampled 11,000 e-commerce sites and found over 1,800 examples of such dark patterns. Such tactics can be especially harmful in India where a booming consumer class, coupled with low digital literacy and a minute English-speaking population, makes the average consumer more vulnerable to foul play.
In light of these concerns, the draft guidelines are a welcome addition to the emerging ecosystem of digital regulations in India on two accounts. First, they explicitly recognise the fact that dark patterns are manipulative and undermine consumer autonomy, preventing consumers from making informed decisions. As a remedy, they also clarify that dark patterns will be subject to pre-existing consumer protection measures. Second, they list 10 categories of specific practices and patterns that will per se be counted as dark patterns and also give illustrative examples under each head for clarity.
Such a list, one that specifically enumerates what behaviour counts as dark patterns, is useful for two reasons. First, explicitly identifying dark patterns will relieve consumers from having to prove how a specific UI/UX pattern undermines consumer autonomy on a case-to-case basis every time. Second, it will preclude the entities who engage in dark patterns from using the broad definition in the guidelines to their advantage by exploiting consumers through long-drawn litigation. As a bonus, the illustrations could also prove to be useful in contextualising dark patterns within specific sectors and scenarios. To further strengthen the guidelines’ objective, we suggest three additions that could make them more comprehensive.
First, “negative option features” should also be explicitly recognised as a dark pattern. Negative-option features are features that allow sellers to interpret a consumer’s silence or failure to take affirmative action as consent. “Auto-renewals” are one such negative option, where sellers automatically renew consumers’ subscriptions when they expire, unless consumers affirmatively cancel the subscriptions. Though sectoral regulators like the RBI have intervened to ensure that consumers are given due notice of auto-renewal, it would also help empower consumers to take necessary action against errant platforms if they are mentioned in the guidelines too. Indeed, simply allowing consumers to set up automatic renewals alone isn’t a dark pattern. But when a seller makes automatic renewal the default rather than an opt-in or uses deceptive design elements to achieve this, that is a dark pattern. The primary issue here is that such a negative option circumvents the need to obtain a consumer’s informed consent, which is a basic consumer right.
Second, “click farming” should be recognised as a dark pattern. Click farming is a practice in which humans or bots fraudulently interact with advertisements, boost likes and subscribers, or write fake reviews on social media platforms. While click farming has not traditionally been recognised as a dark pattern as it was assumed it affected advertisers more, it is necessary to emphasise that such behaviour does in fact impair the consumers’ decision-making process. This is because of two reasons. First, consumers heavily rely on popularity and positive reviews when making purchasing decisions. Second, and more importantly, social media platforms are designed to boost posts with higher engagement percentages. Even search engines like Google and Bing use these metrics to improve a company’s position in their search engine rankings. So while click fraud fools consumers, platforms are still incentivised to boost such fake engagement. In 2020, the Parliamentary Committee Report on the Consumer Protection (E-Commerce) Rules, 2020 made this very observation and argued for recognition of the consumer harm click farming could lead to.
Third, interestingly, the draft guidelines do not mention consumer privacy or data at all. This could be in deference to the Data Protection Act, 2023 which is now the primary regulatory framework for privacy and data protection. However, it would also help from a consumer protection standpoint to include an illustration that covers the issue of platforms seeking more data, both explicit and metadata, from consumers than is required.
Such an inclusion would not only complement the Data Protection Act but would also strengthen the consumer’s right to be informed, which is a common aim under both consumer and data protection laws. One such illustration could be that of cookie consent dark patterns. Cookie consent banners today often use interface designs that not only trick consumers into thinking that they have no choice but to “Accept All Cookies” but also nudge consumers into accepting purely out of sheer annoyance. This is achieved by forcing consumers to navigate through multiple screens or clicks to find the option to reject or modify cookie consent.
The Department of Consumer Affairs Guidelines on dark patterns come at a time when regulators globally are tackling this problem. In this context, we believe the above-mentioned suggestions will strengthen the guidelines and add to consumer welfare.
Mittal is Research Associate and Reddy is Managing Partner at Evam Law & Policy
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