By Pramitee Singh
In 2010, cognitive scientist and designer Harry Brignull invented the concept of dark patterns as a way to describe an unsavory kind of design technique. These are “design practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm.”
Online dark patterns can affect consumer behavior and decision-making through psychological, visual, emotional or other means. These deliberate techniques are disguised in user-friendly interfaces; they exploit our cognitive biases leading us to decisions we would not have made otherwise. They often appear invisible, making it hard for consumers to realize how their online activities are being impacted.
Imagine going through a website and seeing a banner ad that says something like “Flash Sale! 80% off!” You start feeling excited but this excitement fades away once you take a closer look at it. The “sale” comes with hidden costs while the “flash” lasts only for minutes and the quality advertised turns out to be quite disappointing. This is where dark patterns play their insidious game, ladies and gentlemen. They use bait-and-switch tactics by replacing attractive promises with low-quality realities instead. They put you in forced continuity where cancellation options are buried under complex menus with lots of psychological pressure on top of it. They use confirmshaming to exploit our fear of missing out, guilt-tripping you into confirming decisions with statements like "Hurry, last chance!"
At first glance, dark patterns seem like simple deceptive advertisements but they are rooted in exploiting cognitive biases in our thinking and use the interactiveness and immediacy of online marketing to be far more effective and impactful. While these tools are used for legitimate products they are increasingly used for illicit activity such as identity theft increasing regulators awareness of the practice.
They take advantage of our innate need for bargains, our dislike to losing, and our proclivity to comply. They collect personal data without informed consent of consumers. The ramifications can be disastrous. These internet predators can cause financial harm, eroding trust, and even psychological misery.
The impact is particularly acute for those with mental health vulnerabilities. Individuals suffering from anxiety, impulsivity, or a lack of motivation are particularly vulnerable to the siren song of negative patterns. The stress of navigating meandering menus, the pressure of ticking timers, and guilt-inducing messaging can aggravate pre-existing anxiety and contribute to feelings of helplessness.
Legal interventions may be necessary to curtail the use of dark patterns, as they can violate laws against unfair and deceptive practices in trade. The effectiveness of dark patterns in bending consumers to their designers' will has been demonstrated, highlighting the need for ethical considerations and potential legal action.
The nefarious nature of dark patterns is no longer shrouded in obscurity. Regulatory bodies are awakening to the threat they pose, with countries taking charge. The draft guidelines issued by the Ministry of Consumer Affairs, Food and Public Distribution mark a crucial step in protecting consumers from being manipulated in the digital marketplace
Litigations pertaining to dark patterns
There have been various cases where companies have been sued for engaging in dark patterns, such as-
The US Federal Trade Commission (FTC) alleged that Fortnite's interface design tricked users into making unauthorized micro-transactions. The Order issued pursuant to the Complaint provides that Epic must pay US$245 million to the FTC and in return Epic would neither deny nor admit any of the allegations contained within the Complaint, except as stated in the Order and accompanying decision.
This landmark case established precedent for holding companies accountable for manipulative design practices in the gaming industry.
Vonage was accused by the FTC of employing dark patterns when canceling phone services online. The complaint mentioned coercive attempts to dissuade consumers from canceling, concealed cancellation stages, and unclear wording. Vonage consented to enforce more stringent cancelation policies and pay a $100 million penalty.
A proposal that would outlaw junk fees and mandate that companies who mistakenly impose fees reimburse customers has been proposed by the FTC. Companies that breach the rule will also face a $50,000 fine per violation.
The Federal Trade Commission filed a lawsuit against Amazon for its "Iliad Flow" design, which allegedly fooled consumers into signing up for Prime subscriptions without their knowledge. The complaint mentioned unclear cancelation options, misrepresented information, and awkward button placements.
The legal parameters surrounding dark patterns in e-commerce platforms may be further defined by this ongoing lawsuit.
Regulatory Bodies and Laws
Consumer Protection Law
Tricking or coercing a consumer into taking certain actions, or manipulating them into making certain choices, exploits a consumer’s interest and hence amounts to an unfair trade practice, as defined under the Consumer Protection Act (“CPA”).
The Consumer Protection Law, as outlined in the Consumer Protection Act of 2019, identifies dark patterns as unfair trade practices that consumers can challenge. Under this law, individuals have the right to seek resolution against these deceptive practices. The Central Consumer Protection Authority (CCPA) investigates such violations and has the authority to issue orders to safeguard consumer interests. This law serves to protect consumers from deceitful practices and allows for intervention and resolution in cases involving unfair trade.
As it stands, the CPA of 2019 would impose severe fines on any of the dark patterns mentioned in Annexure 1. Non-compliance with the Act’s directions can lead to imprisonment for up to six months, a fine of up to Rs 20 lakh, or both. Additionally, causing false or misleading advertisement which is prejudicial to the interest of consumers, is also a punishable offence, with imprisonment of up to two years and a fine of up to Rs 10 lakh.
Advertising Standards Council of India
The Advertising Standards Council of India (ASCI) has been combating such issues through their existing code on misleading ads.
ASCI published Guidelines For Online Deceptive Design Patterns in Advertising on June 15, 2023. Drip pricing, bait and switch, false urgency, disguised advertising were among the primary dark patterns found by these principles. These restrictions, which go into effect on September 1, 2023, apply to advertisements across all channels and platforms. Compliance and enforcement require platforms, vendors, and advertisers to take prompt action to prevent the prevalence of dark pattern practices in their interfaces. These guidelines mark the government's commitment to safeguarding consumer rights and autonomy in online spaces, especially concerning dark patterns' impact on user consent within India's privacy framework.
Compliance and Enforcement of Guidelines
The Indian government has published recommendations mandating platforms, vendors, and advertisers to put in place mechanisms to avoid dark pattern practices in user interfaces and to take necessary action if such patterns are identified. These guidelines apply to businesses that operate outside of India's boundaries, including those who sell or provide services to Indian consumers. The emphasis on user interface design indicates the government's dedication to preserving customer privacy and encouraging educated online purchasing. Within India's privacy regime, the relationship between dark patterns and user consent is especially important.
In an ideal world, Annexure 1 of the recommendations would serve as a suggestive, but not exhaustive, list of dark trends. Through a systematic reporting mechanism, this structure allows consumers, the general public, or industry players to detect additional fraudulent acts. Acknowledging the evolving nature of deceitful practices, these guidelines should remain open to the possibility of new instances of dark patterns like obstruction, social proofs, psychological pricing, growth hacking, linguistic dead-ends, roach motels, and privacy zuckering. Such designs may require rigorous examination to guarantee that they are not commonly used. Encouraging stakeholders to report new occurrences of dark patterns through an established feedback process would ensure that they were identified in a timely manner. With monitoring and valuable consumer input, industry self-regulation can maintain dynamic norms that are sensitive to growing difficulties in online consumer protection.
Different industries have different laws against dark patterns. For example, IRDAI prohibits default insurance sales from Indian travel portals, and ASCI issues guidelines regarding deceptive online advertising practices. According to the Guidelines, antitrust laws govern 'unfair trade practices,' which include dark patterns. As sectors evolve dynamically, the Ministry must respect the preferences of sector-specific regulators and define its scope within the Guidelines.
Digital platforms have the opportunity to create ethical design guidelines that discourage dark pattern usage. Promoting conscientious design methods and conducting impartial audits can aid in detecting and resolving dark pattern concerns. Empowering users with tools and resources for informed online choices stands as an additional remedy. This might involve browser extensions, applications, or add-ons identifying and preventing dark patterns, or platforms offering user-friendly settings and privacy choices.
Striking a balance between regulatory oversight through guidelines and a nodal regulator, and self-regulation among market players, is an effective framework to curb the use of dark patterns. Platforms and entities can establish their own standards akin to ASCI's, preventing excessive regulation. The AIC highlighted that self-regulation enables platform to manage dark patterns aligning with existing laws for online platforms. In the end, industry players should be in charge of restricting or ending the use of dark patterns, allowing for self-regulation under Ministry supervision and customer input.
Conclusion
Dark patterns are a complex issue, but by recognizing their impact, implementing effective regulations, and promoting ethical design practices, we can navigate the labyrinth and build a digital future where user experience reigns supreme over manipulative tactics. Let us not be passive consumers, but active participants in shaping a responsible and trustworthy digital world.
The author of this article is Pramitee Singh, a first-year BALLB student at Maharashtra National Law University, Aurangabad.
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).