APACExclusive - Dark Patterns in E-commerce: Ministry of Consumer Affairs to Shed Light for Affected Users

Rajneesh De, Consulting Editor, APAC News Network

New Delhi: Most of us are regular purchasers from different e-commerce sites like BigBasket, Zomato, Amazon, Flipkart, MakeMyTrip, BookMyShow and the likes. Almost all of us are subscribers of LinkedIn, YouTube or Facebook. There must have been several instances wherein we might have received unsolicited offers and even coerced indirectly into using some of them. Even if some of these are not done blatantly, they are still being force fed deceptively into the users through trick methods.

Welcome to the world of dark patterns. Thankfully the Government seems to have woken up to this menace and looking forward to legislate stringent actions against dark patterns.

Government Action Plans to Counter Dark Patterns

The Department of Consumer Affairs has sought public feedback on draft guidelines for the prevention and regulation of dark patterns to protect consumers from deceptive and misleading practices by e-commerce apps and sites. Dark patterns include practices or deceptive design patterns using UI/UX interactions on any platform. These designs often mislead users of the e-commerce sites into doing something they originally did not intend to do. Harry Brignull, a user experience researcher in the U.K., introduced the term ‘dark pattern’ in 2010 to characterize deceptive strategies used to trick clients.

“The draft guidelines for the 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 Organisations (VCOs),” stated the Ministry of Consumer Affairs, Food, and Public Distribution.

The Secretary of the Consumer Affairs Ministry, Rohit Kumar Singh, had earlier urged consumers to flag such manipulative online practices on the National Consumer Helpline (NCH) by calling ‘1915’ or through a WhatsApp message to 8800001915. He had also asked online platforms to refrain from adopting ‘dark patterns’ harming consumer interest. While the provisions of the Consumer Protection Act are enough to curb the practices of dark patterns,Singh had informed that the government will bring specific guidelines as the menace has increased along with the expansion of the Internet in the country.

Subsequently, the Department of Consumer Affairs (DoCA) conducted an interactive stakeholders consultation on “Dark Patterns” on 13^th June 2023, which was attended by Advertising Standards Council of India (ASCI), various e-commerce platforms, NLUs, and a few law firms among others. There was a general consensus that dark patterns in e-commerce sites are a cause of concern and need to be dealt with proactively.

A Task Force was formed consisting of representatives from industry associations, ASCI, NLU’s, VCOs and e-commerce platforms including Google, Flipkart, RIL, Amazon, Go-MMT, Swiggy, Zomato, Ola, Tata CLiQ, Facebook, Meta, Ship Rocket and Go-MMT. There were 5 meetings of the members of the Task Force, wherein inputs for the draft policy were taken from all the members.

Decoding the Dark Patterns in the Guidelines

The guidelines have identified ten such patterns including:

False urgency: The platform falsely implies a sense of scarcity so as to mislead a user into making an immediate purchase.
Basket sneaking: Including additional items such as products, services, or payments to charity/donation at the time of checkout from the platform, without the explicit consent of a user.
Confirm shaming: Using a phrase, video, audio, or any other means to create a sense of fear, shame, ridicule, or guilt in the mind of the user. This often leads to the user purchasing a product or service he never intended.
Forced action: Often a user is forced into taking an action that would require him to buy any additional goods, or subscribe or sign up for an unrelated service. Otherwise he would not be able to buy or subscribe to the product or service he originally intended to buy.
Subscription trap: This makes the process of cancellation of a paid subscription impossible by making it an extremely complex and arduous and lengthy process.
Interface interference: A specific design element is meant to manipulate the user interface to highlight certain specific information and obscure other relevant information
Bait and switch: The practice of advertising a particular outcome based on a user’s action, but deceptively serving some other outcome.
Drip pricing: The elements of actual prices are not revealed upfront.
Disguised advertisement: This process involves masking advertisements as other types of content.
Nagging: In this pattern, users face an overload of information unrelated to the purchase of goods or services.

These guidelines would be made applicable to all persons and online platforms, including sellers and advertisers. The window for public comments and feedback will be open until October 5, 2023.

“The Department of Consumer Affairs 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,” reiterated an official from the Department.

Global Usage of Dark Patterns and Actions Initiated

Social media platforms and big tech companies such as Apple, Amazon, Skype, Facebook, LinkedIn, Microsoft, and Google use dark or deceptive patterns to downgrade the user experience to their advantage. Amazon had come under fire in the European Union for its confusing, multi-step cancelling process in Amazon Prime subscription. Subsequently Amazon, in 2022, made its cancellation process easier for online customers in European countries.

LinkedIn users often receive unsolicited, sponsored messages from influencers. Disabling this option is a difficult process with multiple steps that requires users to be familiar with the platform controls. Google-owned YouTube also nags users to sign up for YouTube Premium with pop-ups, obscuring final seconds of a video with thumbnails of other videos.

In March 2021, California passed amendments to the California Consumer Privacy Act, prohibiting dark patterns that hindered consumers from exercising their privacy rights. The UK issued guidelines in April 2019, which were later enforceable under the Data Protection Act, 2018, restricting companies from using manipulative tactics to lure underage users into low privacy settings.

In a study published by Northeastern University in October 2021, alarming statistics regarding the usage of dark patterns were found:

95% of the top 240 Android apps employed deceptive patterns
Well over 50% of major websites used dark patterns

A 2021 Advertising Standards Council of India (ASCI) study that studied ads published by influencers on social media between 2021-22 also found that 29% of these ads had misleading dark patterns.

Impact of Dark Patterns on Users and Businesses

Lack of Transparency: Dark patterns can obscure important information, making it difficult for users to fully understand the implications of their actions. This can lead to uninformed decision making and potential financial or privacy risks.

Reduced Autonomy: Dark patterns manipulate user behaviour, limiting their freedom of choice. Often e-commerce users may feel coerced or pressured into making decisions they would not have otherwise made, leading to subsequent remorse or dissatisfaction.

Privacy Concerns: Some dark patterns may manipulate users into sharing more personal data than they intended. It might even corece them to agreeing to privacy settings that compromise their confidentiality. This can have implications for data security and expose users to potential privacy breaches.

Negative User Experience: Dark patterns often create frustrating and confusing experiences for users. They may feel deceived or manipulated, leading to a loss of trust in the platform or brand and a diminished overall user experience.

Anupam Mishra, the Joint Secretary of DoCA, had previously presented a comprehensive presentation on dark patterns, emphasizing the threat that these patterns pose to consumers, including unintended purchases, addiction, overuse, and privacy violations.

Manisha Kapoor, CEO and Secretary General of ASCI, has also highlighted the importance of addressing deceptive patterns in online advertising, as they mislead consumers, erode trust in brands, and compromise the online experience.