As India is witnessing an increase in the volume and techniques in e-commerce and digital marketing, the need for regulation is necessary and ever present. With an objective to curb deceitful advertisements and inducement techniques that are adopted by online selling platforms / e-commerce platforms, advertisers and sellers, the Government notified the Guidelines for Prevention and Regulation of Dark Patterns, 2023 on November 30, 2023 (the "Guidelines").
The Guidelines define Dark Patterns as 'any practices 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 intent 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'.'
Dark Patterns are not new, though the jurisprudence surrounding them has been slow to evolve, especially in India. For instance, European Data Protection Board framed its first policy on Dark Patterns on 14th March, 2022 itself titled 'Dark patterns in social media platform interfaces: How to recognise and avoid them'1.
The Guidelines provide illustrations on dark patterns which are summarized as follows:
| Dark Pattern | Illustration |
| False Urgency | Giving a false representation about the popularity or availability of a product. |
| Basket Sneaking | Addition of pre-checked items without the consent of the user. |
| Confirm Shaming | Creating a sense of fear, shame, ridicule, or guilt to make the user purchase a certain product |
| Forced Action | Forcing the user to buy an additional good or subscribe for an unrelated service or share personal information to make commercial gains |
| Subscription Trap | Making the cancellation option impossible, complex, or hard to find; forcing user to provide payment details or auto-debits for free trails or making the instructions for cancellation cumbersome. |
| Interface Interference | Using design elements to make specified information more, or less visible to manipulate user action. |
| Bait and Switch | Practice of advertising a particular outcome based on consumer action but deceptively serving an alternate outcome |
| Drip Pricing | Elements of price are not revealed or are distinct from the initial displayed price, including through in app purchases, or additional payment is necessary to avail an already paid for service. |
| Disguised Advertisement | Masking advertised content as other content designed to blend in with the rest of the interface. |
| Nagging | Repeated and persistent interactions to effectuate a transaction and make some specific commercial gain. |
| Trick Question | Deliberate use of vague and confusing language |
| Saas Billing | Collecting payments for a software on a recurring basis by exploiting positive acquisition loops. |
| Rogue Malwares | Using ransomware or scareware to instill a belief that there is a virus making a user download a fake malware protection software that in turn downloads a malware. |
It is pertinent to mention herein that the notified Guidelines had a very noticeable commission as opposed to the guidelines which were presented for stakeholder and public comments, namely; Clause 8 of the draft guidelines which provided for the enforceability of the said guidelines and 'gave it teeth' by providing for consequences of contravention of the guidelines. In this regard, Clause 8 of the draft guidelines is reproduced hereunder:
"Contravention of guidelines- The provisions of the Act shall apply to any contravention of these guidelines."
The notified Guidelines do not find mention of any clause defining the consequence of violation of the said Guidelines or its enforcement procedure. The Guidelines, though imposing a duty to adhere to its terms, fails to provide any specific consequence of breach of the said Guidelines. Moreover, the notified Guidelines comprise of a caveat that the dark pattern practices and illustrations provided in Annexure I of the Guidelines, are for "only guidance and shall not be construed as an interpretation of law or as a binding opinion or decision as different facts or conditions may entail different interpretations".
Arguably, the only clause in the Guidelines which imposes a duty, i.e., Clause 5, is limited to dark patterns specified in Annexure I which itself states that the same are only guidance and not binding. While Clause 5 of the said Guidelines derogates from the object of the Guidelines as it states 'Any person, including any platform, shall be considered to be engaging in a dark pattern if it engages in any practice specified in Annexure 1 of the guidelines', when Annexure 1 itself is only meant to be a guiding and non-binding opinion and not an exhaustive or definitive list.
Further, the Guidelines are also applicable on platforms which, as defined, would also indiscriminately make online intermediaries responsible for proactively monitoring dark patterns deployed through their service by a third party. Since, as per the reading of the Guidelines, it will also make an online intermediary liable for any contravention of such Guidelines by a third party on the their platform. Such a provision would defeat the object of the protection intermediaries enjoy under the provisions of the Information Technology Act, 2000. The High Court of Delhi in the case of Kent RO and Anr. vs. Amit Kotak and Ors.2 had held that intermediaries are not required to proactively monitor user-generated content before publishing it on their website/platforms.
To conclude, the said Guidelines are a step in the right direction. With the existence of persons, including platforms, which attract a significant number of users adopting dark patterns in order to make commercial gains, more often than not at the cost of the users; the need for regulation is at an all-time high.
Footnotes
1. Guidelines 3/2022 on Dark patterns in social media platform interfaces: How to recognise and avoid them Version 1.0 Adopted on 14 March 2022
2. (2017) 240 DLT 3
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