Dark Pattern Advertising

On September 07, 2023, the Department of Consumer Affairs (‘DoCA’) released Draft Guidelines for Prevention and Regulation of Dark Patterns (‘Draft Guidelines’), seeking views and comments from industry stakeholders by October 5, 2023 to be provided to js-ca@nic.in. The Draft Guidelines are accessible here.

The Draft Guidelines have been framed pursuant to an interactive consultation with stakeholders on ‘Dark Patterns’ that was conducted by the DoCA along with the Advertising Standards Council of India (ASCI) on June 13, 2023, as well as recommendations of a Task Force constituted on June 28, 2023.

The Draft Guidelines seek to recognize and regulate ‘dark pattern’ practices which tend to manipulate or alter consumer choices, often by using deceptive or misleading techniques or manipulated user interfaces / web designs.

‘Dark patterns’ is proposed to be defined 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.”

The following practices have been specified to be ‘dark patterns’ as per Annexure 1 to the Draft Guidelines:

• ‘False Urgency’ means falsely implying a 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.
• ‘Basket sneaking’ means inclusion of additional items 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.
• ‘Confirm shaming’ means using a phrase, video, audio, or any other means to create a sense of fear or shame 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.
• ‘Forced action’ means forcing a user into taking an action that would require the user to buy any additional good(s) or subscribe for an unrelated service, in order to buy or subscribe to the product / service originally intended by the user.
• ‘Subscription trap’ means the process of making cancellation of a paid subscription impossible or a complex and lengthy process, hiding the cancellation option for subscription, forcing a user to provide payment details and/or authorization for auto debits to avail a free subscription, or making instructions relating to cancellation of subscription ambiguous, latent, confusing or cumbersome.
• ‘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 them.
• ‘Bait and switch’ means the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome. For instance, informing a customer at check out that the product is no longer available and instead offering a similar product at a higher rate.
• ‘Drip pricing’ means a practice whereby elements of prices are not revealed upfront or are revealed surreptitiously within the user experience, revealing the price post-confirmation of purchase, advertisement as free without disclosure that continuation of use requires in-app purchase, or preventing availment of service which is already paid for unless something additional is purchased.
• ‘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.
• ‘Nagging’ shall mean a dark pattern due to which users face an overload of requests, information, or interruptions, unrelated to the intended purchase of goods or services, which disrupts the intended transaction.

The Draft Guidelines further state that the regulation of dark patterns under these provisions are in addition to, and not in derogation of their regulation under any other law for the time being in force. Any contravention of these guidelines will attract consequences under the Consumer Protection Act, 2019.

With the swiftly growing online marketing being the way of the future, these Guidelines recognize patterns which affect consumers negatively. While the earlier issued Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 provide general safeguards on misleading advertisements in line with the ASCI Code, regulation of the above-mentioned specific practices and patterns are undoubtedly, the much-needed next step.

We hope you have found this information useful. For any queries/clarifications please write to us at insights@elp-in.com  or write to our authors:

Sweta Rajan, Partner – Email – SwetaRajan@elp-in.com
Samyuktha Srinivasan, Senior Associate –  Email – samyukthasrinivasan@elp-in.com
Satvik Garg, Advocate – Email – satvikgarg@elp-in.com

Disclaimer: The information contained in this document is intended for informational purposes only and does not constitute legal opinion or advice. This document is not intended to address the circumstances of any individual or corporate body. Readers should not act on the information provided herein without appropriate professional advice after a thorough examination of the facts and circumstances of a situation. There can be no assurance that the judicial/quasi-judicial authorities may not take a position contrary to the views mentioned herein.