On 30 November 2023,the Central Consumer Protection Authority (CCPA), issued and notified under section 18 of the Consumer Protection Act 2019 (Act), the ‘Guidelines for Prevention and Regulation of Dark Patterns, 2023’ (Guidelines) with a view to prohibit any person or platform from engaging in any dark pattern practice. The Guidelines would be applicable to all platforms, systematically offering goods or services in India, advertisers and sellers.
Background and Overview of Guidelines
Dark patterns - a term that has recently garnered the attention in the digital marketplace and of regulators across the world, has been defined by the CCPA as ‘any practice 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 right’. In simple words and as also explained by the Advertising Standards Council of India (ASCI), a dark pattern is a user interface, generally found on the web, that has been crafted to trick or manipulate users into making choices that are detrimental to their interest.
It is common for e-commerce and other platforms on the web to design a user interface that influences user behavior on the platform and encourages consumers to purchase more on the platform or generate more business for them. However, if such an interface is misleading or tricks the consumer into doing something that they originally did not want to do, then the same would qualify as a dark pattern which has now been prohibited by the CCPA under the Guidelines. However, no independent penalty or consequence of a violation of these Guidelines has been specified. It may therefore be reasonable to assume that a consumer would be required to resort to the complaint mechanism / redressal provisions in the principal Act which deal with misleading advertisements and/or unfair trade practices.
The Guidelines specify a list of 13 practices and illustrations (in Annexure 1 thereof), to provide guidance on what kind of practices would qualify as dark patterns. The same have been briefly summarized below for ease of reference:
With the consistent increase in online commerce and internet advertising, consumers are increasingly vulnerable to dark patterns as companies tend to use complex web designs to maximize commercial gains from each user interaction. There lies a fine line between ethically influencing or persuading consumer behavior and in manipulating them into doing something that they did not intend to or want to do. The Guidelines aim to give more power to a consumer’s ability to make an informed decision and protect them from such interactions on the web, which have the potential of tricking, trapping or misleading them. It may be relevant to note that the specified dark patterns are similar to those released by ASCI in a report issued by it in December 20221 and are in furtherance of the overall objective of regulators to ensure safety of users, including on the web.