Draft Guidelines for Prevention and Regulation of Dark Patterns, 2023

Sheena Khan , Nisha Sinha , Parag Singhal

September 29, 2023

Draft Guidelines for Prevention and Regulation of Dark Patterns, 2023

The Department of Consumer Affairs along with the Advertisement Standards Council of India (ASCI) held a joint discussion on ‘dark patterns’ being adopted by advertisers online. Pursuant to the discussions, the Department of Consumer Affairs has published the ‘Draft Guidelines for Prevention and Regulation of Dark Patterns’ for public comment. We’ve provided an overview of the guidelines below (which would result in a reasonable number of changes being implemented by businesses and advertisers):

Subscription trap:

The guidelines describe the ‘Subscription trap’ as the process –

  1. of making cancellation of a paid subscription impossible or a complex and lengthy process; or
  2. hiding the cancellation option for a subscription; or
  3. forcing a user to provide payment details and/or authorization for auto debits for availing a free subscription; or
  4. making the instructions related to the cancellation of subscription ambiguous, latent, confusing, and cumbersome.

While the Ministry hasn’t provided any illustration of this specific type of dark pattern, the business vertical that could be one of the most affected by this would be credit card companies. This is primarily because customers often criticize credit card companies for making lengthy and complex procedures for the cancellation of credit card subscriptions. Further, while the guidelines mention that ‘forcing a user to provide payment details and/or authorization for auto debits for availing a free subscription’ will also be considered a dark pattern, the guidelines fail to specifically address and provide clarity as regards the scenario where payment details are compulsorily sought from consumers for a free subscription for the initial period and subsequent pre-approved auto-debits for a paid subscription.

Nagging:

The guidelines describe ‘Nagging’ as the phenomenon where ‘users face an overload of requests, information, options, or interruptions; unrelated to the intended purchase of goods or services, which disrupts the intended transaction’. The guidelines also provide the following two illustrations for what would amount to nagging:

  1. Websites asking a user to download their app, again and again.
  2. Platforms asking users to give their phone numbers for supposedly security purposes.
  3. Constant requests to turn on notifications with no option to say “NO”.

While the guidelines have provided some illustrations of ‘nagging’, they’ve kept the description quite broad and open-ended (for virtually a lot of scenarios to potentially fall in this category). The inclusion of the expansive terms ‘information’ and ‘options’ leaves quite a lot to subjectivity. The guidelines potentially don’t address the scenarios where any set of ‘information’ or ‘options’ provided to the user would be for their benefit (although could be lengthy and could arguably disrupt the intended transaction).

Confirm Shaming:

The guidelines describe ‘confirm shaming’ as “usage of 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.” The guidelines also provide the following two illustrations to clarify what could amount to ‘confirm shaming’:

  1. A platform for booking flight tickets using the phrase “I will stay unsecured” when a user does not include insurance in their cart.
  2. A platform that adds a charity in the basket using the phrase “charity is for the rich, I don’t care”

The Government has hit the perfect nail with the inclusion of this provision since a majority of online platforms adopt this tactic to influence the user to purchase the good/service being offered for sale. More pertinently, the inclusion of the words ‘fear’, ‘shame’, ‘ridicule’, or ‘guilt’, makes this provision comprehensive in nature.

Drip pricing:

As per the guidelines, ‘drip pricing’ means a practice whereby –

  1. elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; or
  2. revealing the price post-confirmation of purchase, i.e. charging an amount higher than the amount disclosed at the time of checkout; or
  • a product or service is advertised as free without appropriate disclosure of the fact that the continuation of use requires in-app purchase; or
  1. a user is prevented from availing of a service that is already paid for unless something additional is purchased.

Explanation:

A marketplace e-commerce entity shall not be liable for price fluctuations to the extent attributable to price changes by third-party sellers or due to other factors beyond their control. Further, the guidelines also provide the following illustrations of ‘drip pricing’ tactics:

  1. A consumer is booking a flight, the online platform showcases the price as X at the checkout page, and when payment is being made, price Y (which is more than X) has been charged by the platform to the consumer.
  2. A consumer has downloaded a mobile application for playing chess, which was advertised as ‘play chess for free’. However, after 7 days, the app asked for a payment to continue playing chess. The fact that the free version of the game is available only for a limited time, i.e., 7 days in this case, was not disclosed to the consumer at the time of downloading the mobile application.
  3. A consumer has purchased a gym membership. In order to actually use the gym, the user must purchase special shoes/boxing gloves from the gym, and the same was not displayed at the time of offering the gym membership.

This guideline intends to make pricing and advertising more transparent by ensuring that consumers/users have upfront clear information about what they’re paying for and there should not be any hidden costs. This will help people to make informed and thoughtful choices and avoid unexpected costs while purchasing/availing any products and/or services. It is pertinent to note that the guidelines have carved out an exception for marketplace e-commerce platforms from legal liability when it comes to price fluctuations in products sold on their platform. Since marketplace e-commerce platforms are not responsible for the determination of the prices of the products, the guidelines provide that they will not be held liable for any deceptive practices in respect thereto (to the extent that they are beyond their control). Further, this particular guideline is in consonance with the guidelines released by ASCI in June 2023 for ‘Online Deceptive Design Patterns in Advertising’, wherein it was recommended that the total price (inclusive of any non-optional taxes, charges, etc.) of a product/service should be displayed upfront (rather than displaying it at a later stage during the transaction process).

Disguised advertisement

The guidelines describe that a ‘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.” The guidelines further provide the following two explanations as regards ‘disguised advertisements:

  1. For the purposes of this clause, the expression “disguised advertisement” also includes misleading advertisement as provided under section 2 (1)(28) of the CP Act 2019 and the “Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022” shall also be applicable to it.
  2. In relation to content posted by a seller or an advertiser on a platform, the responsibility of making the disclosure that such content is an advertisement shall be on such seller or advertiser.

It is a prevalent practice for advertisers to deliberately employ unethical strategies with the intention of tricking consumers by creating promotional content which essentially blurs the line between advertising and non-promotional content. Such deliberate acts of deception may include hiding the true nature of the advertisement by mimicking the style, format, or tone of non-promotional content or by employing visual tricks, language, or placement within a platform or website to make it less obvious that the content is promotional in nature. As per the explanation to the guidelines, the term ‘Disguised Advertisement’ also includes ‘misleading advertisements’ as mentioned under Section 2 (1)(28) of the Consumer Protection Act 2019. Section 2 (1)(28) of the Consumer Protection Act, 2019 outlines the parameters that determine what qualifies as a misleading advertisement in relation to any product or service. The misleading advertisement is an advertisement which –

  • falsely describes such product or service; or
  • gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or
  • conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
  • deliberately conceals important information.

Further, the explanation also provides relief to online platforms (which do not moderate content) by putting the responsibility on the seller/advertiser to ensure that they should ensure that there are appropriate disclosures as regards the content being posted by them.

Forced action:

As per the guidelines, a ‘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.” The guidelines also provide for some instances of ‘Forced Action’, which include the following:

  • Preventing a user from accessing the product or service they initially paid for and agreed upon, unless they opt for an upgraded package at a higher cost or additional fees.
  • Compelling a user to subscribe to a newsletter is a prerequisite for buying a product.
  • Forcing a user to install an unrelated app as a prerequisite for accessing a service that was initially advertised on a different app. For instance, a user downloads app X, which is designed for listing rental properties. However, upon downloading X, they are required to also download another app, Y, which is unrelated and meant for hiring painters. Without downloading Y, the user cannot utilize any of the services offered on X

Forced Action refers to a situation in which a user is compelled to perform an action they didn't initially intend to take which purchasing a good/service. This deceptive practice often involves making an additional purchase, subscribing to a product/service, or signing up for an unrelated service. The critical aspect of a forced action is that it is not voluntary or by choice, rather, it is imposed or mandated by the provider or platform. It often results in the user spending more money than they initially planned.

False Urgency:

As per the guidelines, ‘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 including:

  1. Showing false popularity of a product or service to manipulate user decision;
  2. Stating that quantities of a particular product or service are more limited than they actually are.”

The guidelines further provide the following illustrations of ‘false urgencies’:

  1. Presenting false data on high demand without appropriate context. For instance, “Only 2 rooms left! 30 others are looking at this right now.”
  2. Falsely creating time-bound pressure to make a purchase, such as describing a sale as an ‘exclusive’ sale for a limited time only for a select group of users.

This particular deceptive practice is one of the most frequent practices used by online sellers and advertisers. While the statute is correct in including this as a dark pattern, the administrative burden as regards analyzing/establishing whether or not such the urgency being displayed is actually true or not, will be high (both for the advertiser as well as the relevant adjudicating body).

Basket Sneaking:

As per the guidelines, ‘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.” The guidelines, however, understandably create an exception to this general provision clarifying that the addition of free samples or providing complimentary services, or the addition of necessary fees disclosed at the time of purchase, shall not be considered basket sneaking. This essentially means that only those goods or services, the addition of which leads to an increase of the initial consideration amount, would amount to basket sneaking. This particular dark pattern is slightly similar to the malpractice of ‘forced action’. However, under ‘forced action’, the consumer doesn’t have the option of proceeding with the purchase of the intended product/service without purchasing the product/service which is being ‘forced’ upon it. On the other hand, under ‘basket sneaking’, the unintended product/service is sneakily added to the cart (but allows the user to remove such product/service before making the final payment). The guidelines provide the following illustrations for ‘basket sneaking’:

  1. Automatic addition of paid ancillary services with a pre-ticked box or otherwise to the cart when a consumer is purchasing a product(s) and/or service(s).
  2. A user purchases a single salon service, but while checking out a subscription to the salon service is automatically added.
  3. Automatically adding travel insurance while a user purchases a flight ticket.

Interface interference:

As per the guidelines, ‘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.” This particular type of deceptive practice is adopted by online platforms with clever (yet innovative) forms of usage of technology, with the attempt to divert the user’s attention from the relevant information (which would be relevant for the user to be aware of while purchasing the relevant good/service). The guidelines provide for the following illustrations of ‘interface interference’:

  1. Designing a light-colored option for selecting “No” in response to a pop-up asking a user if they wish to make a purchase or concealing the cancellation symbol in tiny font or changing the meaning of key symbols to mean the opposite.
  2. An ‘X’ icon on the top-right corner of a pop-up screen leads to opening-up of another ad rather than closing it.
  3. Designing a virtually less prominent design a light-colored option for selecting “No” in response to a pop-up asking a user if they wish to make a purchase.

Bait and switch tactic:

As per the guidelines, this particular deceptive practice means “the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.” Since this particular guideline is ambiguously worded, the guidelines provide an illustration to clarify the intent of these provisions. The illustration reads as – “A seller offers a quality product at a cheap price but when the consumer is about to pay/buy, the seller states that the product is no longer available and instead offers a similar looking product but more expensive.” This particular practice is extremely prevalent in the online pharmaceutical delivery sector where alternative expensive drugs are offered in place of products that the consumer initially intended to purchase at a much lower price (and was displayed as being payable on the online platform). While the guidelines are currently open for public comments, it isn’t expected that major changes will be made to the provisions. As and when the guidelines are implemented, it will add technological and administrative burden on the online platforms to comply with the requirements (since as of today numerous online platforms would fall foul of the restrictions under these guidelines).

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