Reining Rogue Digital Scammers & Marketeers - the recently published Guidelines on Dark Patterns

The Central Consumer Protection Authority (CCPA) notified the Guidelines for Prevention and Regulation of Dark Patterns, 2023 on 30.11.2023 which aims to curb misleading practices that trick users into making choices they originally did not intend to make. The guidelines prohibit all platforms offering goods or services in India, advertisers, sellers to engage in any kind of dark pattern practice.  

“Dark Patterns” have been broadly defined by the CCPA in the said guidelines as any practices or deceptive design patterns using user interface or 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.

The following practices have been specified in the said guidelines to provide guidance and better understanding of the guidelines which may entail different interpretations, subject to different facts or conditions:

1. “FALSE URGENCY”- misleading a user by emphasizing on scarcity of a product and building a sense of urgency that may manipulate a user to make an immediate purchase.
2. “BASKET SNEAKING” – automatically adding products/ services [except free samples, complimentary services or addition of necessary fees disclosed at the time of purchase], payments to charity in the shopping cart without the consent of the user, at the time of checkout from an e-commerce platform thereby increasing the cart value payable by the user.
3. “CONFIRM SHAMING”- using phrases, audio/video clips or any other means to inculcate a sense of shame, fear or guild in the mind of the user in order to entice them into purchasing a product, service or subscription for the purpose of making commercial gains by attacking the choices of the consumers indirectly.
4. “FORCED ACTION”- forcing users to buy any additional product without which they cannot have access to the original product that they wanted to buy, forcing them to buy subscriptions or to sign up for an unrelated service or forcing them to share personal contact information in order to access the products or services that the user intends to purchase.
5. “SUBSCRIPTION TRAP”- not allowing the user to cancel subscription by making it an impossible or a complex process or by hiding the option for cancellation of subscription. Also includes forcing a user to provide payment details before availing a free subscription.
6. “INTERFACE INTERFERANCE”- Confusing or manipulating the user through the user interface to misdirect the user from taking a desired action by designing the interface in a way that the users are trapped and led on to open unintended tabs, pop-ups etc.
7. “BAIT AND SWITCH” – advertising the product priced at cheaper rates only to display different products which are priced at a higher rate when the user visits the site, showing the original product as unavailable which lures the consumer to buy the product priced at a higher rate.
8. “DRIP PRICING”- not revealing the price of the products upfront or revealing the price post-confirmation of purchase and charging a higher amount than the amount disclosed at the time of checkout, advertising a product/service as free without disclosing the fact that the continuation of use requires an in-app purchase. Preventing a user from availing a service for which payment has been made unless something additional is purchased.
9. “DISGUISED ADVERTISEMENT”- misleading advertisements masking such advertisements as user generated content in order to trick consumers into clicking on such advertisements.
10. “NAGGING”- repeated information, requests, interruptions by the sellers to disrupt and nag the consumers to effectuate a purchase and make commercial gains.
11. “TRICK QUESTION” – deliberately using phrases or vague language like double negatives and not giving direct straightforward options only to confuse the user in order to misguide the user from taking desired action.
12. “SAAS BILLING”- collecting payments from consumers on a recurring basis in Software as a Service model by charging for features they don’t use, not notifying the user when the free trial is converted into paid subscription, auto-renewal of services without notifying the users, using shady credit card authorization services in order to debit money from the accounts of the consumers on a recurring basis.
13. “ROGUE MALWARES”- using scareware to deceive the consumers into believing that there is a virus in their system thereby convincing them to pay for a fake malware removal tool that actually installs malware in their system.

The increased usage of digital marketing has also increased in deployment of unfair trade practices through which the consumers are deceived and manipulated into making unintended choices.

The Department of Consumer Affairs (DoCA) has recognized the need to acknowledge and address the issue for both consumers and the industry.

The Consumer Protection Act, 2019 protects and safeguards the rights of the consumers and in consideration of the same, the CCPA has issued the Guidelines for prevention and regulation of dark pattern practices to protect the users from being misled, misdirected or making unintended choices subverting or impairing the consumer autonomy.

-- Simran More, Advocate

Links: Press Release - https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1983994