The Department of Consumer Affairs, under the Ministry of Consumer Affairs, Food and Public Distribution, has recently notified the Guidelines for Prevention and Regulation of Dark Patterns, 2023 (‘Guidelines’). The same have been also enforced by the Central Consumer Protection Authority on 30 November 2023.
The key provisions are summarised below.
Key definitions and applicability
The Guidelines prohibit engaging in any ‘dark pattern practices’ and apply to ‘advertisers’, ‘sellers’ and all ‘platforms’, which systematically offer goods and services in India. The definitions of these terms are set out below.
‘Dark Patterns’ mean 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.
‘Platform’ means an online interface in the form of any software including a website or a part thereof and applications including mobile applications.
‘Advertiser’ means a person who designs, produces, and publishes advertisements either by his own effort or by entrusting it to others in order to promote the sale of his goods, products or services and includes a manufacturer and service provider of such goods, products or services.
‘Seller’ in relation to a product, means a person who in the course of business, imports, sells, distributes, leases, installs, prepares, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes: (a) a manufacturer who is also a product seller; or (b) a service provider.[1]
Key compliances
The Guidelines prohibit all Platforms, Advertisers and Sellers from utilising dark patterns in their UI/UX designs. The Guidelines also prescribe a list of illustrative examples of dark pattern practices, set out below:
(a) False urgency: Creating or implying a sense of urgency or scarcity, including by depicting false popularity of a product or service.
(b) Basket sneaking: Inclusion of additional products without the consent of the user such that the amount payable by user will be more than the service availed.
(c) Confirm shaming: Instilling a sense of shame / guilt/ fear in a user’s mind through the use of a phrase/ video/ audio or other means.
(d) Forced action: Forcing a user to take an action that would require the user to buy additional goods/ sign up for an unrelated service or share personal information in order to buy/ subscribe to a product/ service intended by the user such as requiring a user to share details of their contacts/ social networks or making it difficult for consumers to alter/ understand their privacy settings.
(e) Subscription trap: The practice of making cancellation of subscription lengthy or hiding of cancellation option for subscription or making cancellation process ambiguous and confusing or forcing a user to provide payment details for automatic subscription.
(f) Interface interference: For instance, a design element highlighting certain information and obscuring other relevant information, with the aim to misdirect a user.
(g) Bait and switch: The practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.
(h) Drip pricing: The practice of not revealing prices upfront or charging higher amount at the time of check out or preventing any user from availing a service which is already paid for unless something additional is purchased.
(i) Disguised advertisement: The practice of masking advertisements as user generated content or news articles such that the advertisements blend in with the rest of the user interface in order to trick consumers into clicking on them.
(j) Nagging: Interrupting users by repeated and persistent interactions to effectuate a transaction and make some commercial gains, unless specifically permitted by the users.
(k) Trick Questions: Deliberate use of confusing or vague language like confusing wording, double negatives, or other similar tricks, in order to misguide or misdirect a user from taking desired action or leading consumer to take a specific response or action.
(l) Saas billing: Using payment softwares for collecting payment on a recurring basis by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible.
(m) Rogue malware: Using ransomware/ scareware to mislead or trick users into believing there is a virus on their computer with the aim of convincing them to pay for a fake malware removal tool which ends up installing malware on their computer.
LKS Comments
The Guidelines are a progressive step as there is now clarity on the meaning and scope of dark patterns under Indian laws. This is useful not just for consumers, but also for e-commerce businesses, as they will have clarity on the scope (and limits) of the meaning of dark patterns, which will allow them to effectively evaluate the legal permissibility of their online practices, tools, strategies, or marketing measures.
Also, while the Guidelines are a progressive step, there are some other measures which can be used to further address the issues arising out of the use of dark patterns. These could include measures such as raising public awareness about dark patterns or incentivising the use of ‘light patterns’. ‘Light patterns’ in UI/UX design are the opposite of dark patterns and entail the use of consumer-friendly architecture and best practices on online platforms, for instance, pre-selection of options in a UI/UX interaction which are most-likely to ensure consumer autonomy.
[1] The Guidelines specifically exclude the following from the definition of ‘Seller’: (a) a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats; (b) a provider of professional services in any transaction in which, the sale or use of a product is only incidental thereto, but furnishing of opinion, skill or services being the essence of such transaction; or (c) a person who: (i) acts only in a financial capacity with respect to the sale of the product; (ii) is not a manufacturer, wholesaler, distributor, retailer, direct seller, or an electronic service provider; or (iii) leases a product, without having a reasonable opportunity to inspect and discover defects in the product, under a lease arrangement in which the selection, possession, maintenance, and operation of the product are controlled by a person other than the lessor.