Draft Guidelines for
Prevention and Regulation of Dark Patterns Issued for Public Comments
·
Draft Guidelines list various deceptive practices
being adopted by online platforms in the nature of dark patterns which are
against interests of consumers
·
Department of Consumer Affairs solicits
public comments/suggestions on Guidelines within 30 days till 5th October, 2023
·
Dark
patterns in online interface to manipulate consumer choice and violate
·
Dark
patterns as any practices or deceptive design patterns using UI/UX (user
interface/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
·
“False
Urgency” means falsely stating or implying the sense of urgency or scarcity
·
“Basket
sneaking” means inclusion of additional items
·
“Confirm
shaming” means using a phrase, video, audio or any other means to create a
sense of fear
·
“Subscription
trap” means the process of making cancellation of a paid subscription
impossible
·
“Interface
interference” means a design element that manipulates the user
interface in ways that (a) highlights certain specific information; and (b)
obscures other relevant information relative to the other information
·
“Bait
and switch” means the practice of advertising a particular outcome based on
the user’s action but deceptively serving an alternate outcome.
·
“Drip
pricing” means a practice whereby-elements of prices are not revealed
upfront or are revealed surreptitiously.
·
“Disguised
advertisement” means a practice of posing, masking advertisements as other
types of content.
·
“Nagging”
shall mean a dark pattern due to which users face an overload of requests.
<Draft
Guidelines for Prevention and Regulation of Dark Patterns>
The
Department of Consumer Affairs, Government of India, has sought public comments
on Draft Guidelines for Prevention and Regulation of Dark Patterns. Draft
Guidelines are placed on the website of the Department of Consumer Affairs and
are accessible through the link
(https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20Guidelines%20for%20Prevention%20and%20Regulation%20of%20Dark%20Patterns%202023.pdf).
Public comments/suggestions/feedback are solicited and may be provided to the
Department within 30 days (until 5th October 2023).
The draft
Guidelines for 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 Organizations (VCO’s).
The
Department of Consumer Affairs (DoCA) conducted an
interactive stakeholders consultation on "Dark Patterns" on
13th June 2023, which was attended by Advertising Standards Council of
India (ASCI), various e-commerce platforms, NLU’s, Law firms etc. In the
meeting, there was a general consensus that Dark Patterns are a cause of
concern and need to be dealt with proactively.
Thereafter,
a letter dated 28.06.2023 was sent by the Secretary, Department of Consumer
Affairs to E-commerce companies, Industry Associations and participants of
stakeholder consultation, requesting them to refrain from incorporating any
design or pattern in the online interface of their platform that may deceive or
manipulate consumer choice and fall in the category of dark patterns. It
strongly advised online platforms to not engage in ‘unfair trade practices’ by
incorporating dark patterns in their online interface to manipulate consumer
choice and violate ‘consumer rights’ as enshrined under Section 2(9) of the
Consumer Protection Act, 2019.
A
Task Force was subsequently formed consisting of representatives from Industry
Associations, ASCI, NLU’s, VCO’s and e-commerce platforms including Google,
Flipkart, RIL, Amazon, Go-MMT, Swiggy, Zomato, Ola,
Tata CLiQ, Facebook, Meta, Ship Rocket and Go-MMT.
That 5 meetings of the members of the Task Force were held, wherein inputs for
draft policy were taken from all the members of the task Force.
Based
on these deliberations and draft Guidelines submitted by the Task force to the
Department of Consumer Affairs, present Draft Guidelines for prevention and
regulation of dark patterns have been drafted and are now being put up for
public consultation. Proposed Guidelines shall be issued under section 18
(2) (l) of the Consumer Protection Act 2019.
The
draft guidelines define dark patterns as any practices or deceptive design
patterns using UI/UX (user interface/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. Under the Guidelines, following
Dark patterns have been specified:
i.
“False
Urgency” means falsely stating or implying the sense of urgency or scarcity
so as to mislead a user into making an immediate purchase or take an immediate
action, which may lead to a purchase.
ii.
“Basket
sneaking” means inclusion of additional items such as products, services,
payments to charity/donation at the time of checkout from a platform, without
the consent of the user, such that the total amount payable by the user is more
than the amount payable for the product(s) and/or service(s) chosen by the user
iii.
“Confirm
shaming” means using a phrase, video, audio or any other means to create a sense
of fear or shame or ridicule or guilt in the mind of the user, so as to nudge
the user to act in a certain way that results in the user purchasing a product
or service from the platform or continuing a subscription of a service.
iv.
“Forced
action” shall mean forcing a user into taking an action that would require
the user to buy any additional good(s) or subscribe or sign up for an unrelated
service, in order to buy or subscribe to the product/service originally
intended by the user
v.
“Subscription
trap” means the process of making cancellation of a paid subscription
impossible or a complex and lengthy process including similar other practices
vi.
“Interface
interference” means a design element that manipulates the user
interface in ways that (a) highlights certain specific information; and (b)
obscures other relevant information relative to the other information; to
misdirect a user from taking an action desired by her.
vii.
“Bait
and switch” means the practice of advertising a particular outcome based on
the user’s action but deceptively serving an alternate outcome.
viii.
“Drip
pricing” means a practice whereby-elements of prices are not revealed
upfront or are revealed surreptitiously within the user experience; and/or
other such practices
ix.
“Disguised
advertisement” means a practice of posing, masking advertisements as other
types of content such as user generated content or new articles or false
advertisements.
x.
“Nagging”
shall mean a dark pattern due to which users face an overload of requests,
information, options, or interruptions; unrelated to the intended purchase of
goods or services, which disrupts the intended transaction.
Guidelines
would be made applicable to all the persons and online platforms including
sellers and advertisers. Under the draft guidelines, certain specified dark
patterns have been defined and illustrated with examples, to bring more
clarity. The objective of the Guidelines is to identify and regulate such
practices which tend to manipulate or alter consumer choices, often by using
deceptive or misleading techniques or manipulated user interfaces/web designs.
Thus, the proposed Guidelines seek to oversee such practices which are
prejudicial to the consumer interests.
The
department 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.