Have you ever been compelled to sign up for a service or make a purchase you were not convinced about or you end up regretting after finalizing the purchase? Online platforms have mastered the use of deception and usage of design elements, which helps in maintaining this facade, known as “dark patterns” to influence our decisions as consumers.
These strategies or patterns can appear to be insignificant at face value but prove to be dangerously effective. Consider being targeted by notifications and countdowns flashing on your screen that create a sense of urgency and force you to act in a time-pressed manner. Perhaps you may come across misleading consent forms which make it difficult to grasp exactly what you’re committing to in the given moment.
While these practices are considered minor inconveniences, they might turn out to have major effects on consumers. Dark patterns hence damage our trust and liberty online, from letting platforms to acquire more of our data to putting us into unwanted subscriptions by utilizing our online preferences and likes.
The main issue here becomes the ambiguity around how to respond to these fraudulent and rather suspect methods. Existing data and consumer protection laws, while necessary, tend to be too rigid and regressive, to fully address the ever-shifting nature of such dark patterns.
A stronger legal foundation could be provided by tailored laws such as consumer laws, explicitly targeting manipulative design practices against the interests of consumers. Furthermore, empowering users through education and awareness campaigns for consumers can also better equip them to recognize and resist these approaches.
The duty for creating a fair and honest online environment rests not only with regulatory frameworks, but also with various such platforms indulging in such misleading activities.
TYPES OF “DARK PATTERNS”
It is easy to overlook the hidden cost of dark patterns in this age of digital ease, where a tap on your phone provides access to utilities as well as entertainment.
Some common examples of dark patterns creeping into our phones are:
- While perusing a shopping website, adding a product to the cart, and then realizing at checkout that many other things have been pre-selected.
- Or being presented with a “free trial” that automatically converts into a paid subscription without an express consent.
These are only two of the insidious dark patterns hiding online, meant to take advantage of our cognitive biases and subconscious shortcuts. These patterns take many shapes, from hidden information buried in long terms and conditions to scarcity and urgency tactics that force you to make rapid decisions. They can even be masked as misleading designs, in which buttons and interfaces are purposefully constructed in order to deceive consumers into clicking the incorrect link or making decisions they did not intend to make.
The repercussions of succumbing to these dark patterns are often catastrophic and people find themselves paying for services they did not choose/want, losing control over their personal data also at times, or simply feeling skeptical of accessing different apps across internet platforms.
Dark pattern examples:
- Sneak-in-the-Basket: Unwanted products are automatically added to your cart during the checkout process.
- Forced Continuity: After a free trial, users are automatically enrolled in paying memberships.
- Confirm Shaming: When consumers try to deny an offer, they are confronted with guilt-tripping messaging.
- Roach Motel: Unsubscribing or cancelling services is difficult and complex.
- Privacy Zuckering: When settings related to privacy are buried or concealed in order to deceive users into providing more information.
CONSUMER LAW AND DARK PATTERNS
In today’s digital environment, preventing fraudulent activities is critical for every government around the world. Most of the developed and growing economies around the world are incorporating statutes and guidelines to deal with dark patterns.
Similar to the rest of the world, the Central Consumer Protection Authority (CCPA) has issued another set of comprehensive guidelines under consumer law known as the “Draft Guidelines for Prevention and Regulation of Dark Patterns 2023” after the Department of Consumer Affairs (DoCA) conducted an interactive consultation with stakeholders on “Dark Patterns” on 13th June 2023. Further, a Task Force was also constituted to submit recommendations on identification and regulation of dark patterns. According to the agency, the participants agreed that dark patterns are a pressing concern and warranted proactive action. India has also joined the United States, the European Union, and the United Kingdom in enacting enforceable legislation(s) to combat dark patterns.
Additionally, as it currently stands, the Consumer Protection Act, 2019 levies heavy fines for any of the dark patterns listed in Annexure 1 of the guidelines, which are :
- False Urgency
- Basket Sneaking
- Confirm Shaming
- Forced Action
- Subscription Trap
- Interface Interference
- Bait and Switch
- Drip Pricing
- Disguised Advertisement
- Nagging
Non-compliance with the Act’s provisions results in up to six months imprisonment, a fine of up to Rs 20 lakh, or both. Furthermore, causing false or misleading advertisement that is detrimental to the interests of consumers is a serious offence punishable by imprisonment for up to two years and a fine of up to Rs 10 lakh.
WAY AHEAD
The dark patterns phenomenon has become widely global. It compromises data protection and various consumer rights principles. Moreover, it also takes advantage of the consumers and manipulatively leads them into making decisions that do not favor them. Such activities not only threaten the autonomy of the consumer, fairness, but also their ability to make reasonable decisions. The existing regulations, such as the GDPR, provide some protection, but they are not able to deal with the ever-changing and dynamic nature of dark patterns.
However, new legislative ideas aimed at reducing these misleading tactics appear to be promising but simply relying on regulations has proven to be insufficient.
There is a need and ethical onus on the design and interface industry to establish ethical standards for itself, placing user well-being ahead of profit. Collectively, a fair and transparent digital world where everyone can thrive by equipping users to recognize and fight dark patterns can be created.
The fight against dark patterns necessitates a collaborative effort from all stakeholders. Development of a digital environment that respects individual rights and supports ethical practices by encouraging collaboration among designers, lawmakers, and users. Only then can we genuinely realize a world in which technology empowers and does not violate.
Guest Post – By Roopan Atwal (Advocate) & Ayush Tiwari (Student, 4th year Symbiosis, Noida)
