CCPA Notifies the Guidelines for Prevention and Regulation of Dark Patterns

On November 30, 2023, the Central Consumer Protection Authority (CCPA), in exercise of its powers under the Consumer Protection Act, 2019, issued Guidelines for the Prevention and Regulation of Dark Patterns, 2023 (hereinafter referred to as ‘Guidelines’). The Guidelines were issued with the objective of protecting consumers from manipulation and misleading tactics used by advertisers and sellers in the online sphere. These Guidelines impose a ban on the use of “dark patterns” on all e-commerce platforms operating in India, which includes websites, mobile apps, and sellers. Further, these prohibit use of dark patterns in a form that aims to trick users into making unintended decisions. The Guidelines apply to 

• all platforms offering goods or services in India, 
• advertisers 
• sellers

Prior to notifying the Guidelines, the Indian Ministry of Consumer Affairs (in September, 2023) had released draft guidelines for the prevention and regulation of dark patterns for public consultation. The draft guidelines identified and banned the use of ten distinctive types of specific dark patterns (discussed here). Under the scope of the recently notified Guidelines, thirteen types of specific dark patterns are now identified and regulated. Further, the new Guidelines have been updated and made consistent with the Guidelines for Online Deceptive Design Patterns in Advertising issued by the ASCI in June 2023 (which are separately discussed here). 

Under the new Guidelines, “dark patterns” are defined as “any practice 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 intend or want to do, by subverting or impairing the consumer autonomy, decision making or choice, amounting to a misleading advertisement or unfair trade practice or violation of consumer rights.”

Beyond the initial ten specific dark patterns (viz. false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, disguised advertisement, and nagging) that were identified by the Ministry of Consumer Affairs in the draft guidelines released earlier, the new Guidelines primarily add three new “dark patterns”. The additional dark patterns are termed ‘Trick Questions’, ‘SaaS Billing’, and ‘Rogue Malware’, and are described in further detail herein below:

• “Trick Questions” constitute deceptive practices whereby companies use confusing or vague language, such as ambiguous wording, double negatives, or other similar tactics, to mislead or manipulate consumers. This can involve making it difficult for users to understand their options or leading them to take actions they wouldn't otherwise choose.
• “SaaS Billing” refer to use of deceptive practices particular to the software-as-a-service (SaaS) industry, specifically, the misuse of the recurring billing model by SaaS companies to secretly obtain payments from users. This can include automatically converting free trials into paid subscriptions without notifying the user.
• “Rogue malwares” comprises a deceptive practice whereby users are tricked into believing that there is a virus on their devices through the use of ransomware or scareware in order to convince them to pay for a fake malware removal tool to remove the malware, but such a tool actually ends up installing a malware.

Since the new Guidelines against "dark patterns" are now in force, all online platforms, sellers, and advertisers must implement mechanisms to ensure their user interfaces are free from such deceptive practices, particularly, the specific dark patterns identified thereunder. Moving forward, thereby all relevant stakeholders must actively review their practices and take swift action to rectify and remove any use of identified and perceived dark patterns and employ safeguards to protect the interests of the user/consumer in India.