Have you ever encountered a website which forces you to accept certain terms or one which makes the process complicated to cancel the free subscription before the paid one starts? You may have noticed price variations before and after adding item in your cart. You have encountered then the Dark patterns which are made by the companies to manipulate users.
So,what is this term Dark patterns mean?
The term was first coined in 2010 by Harry Brignull, the UK based user experience (UX) designer, who described it as manipulative user interface tricks “that makes you do things that you did not mean to”[1].
The first state to take steps against dark patterns is California. California's Office of Administrative Law approved regulations in March under the California Consumer Privacy Rights Act (CPRA). Laws by outlawing the use of dark patterns to obstruct or undermine the procedure through which customers can choose not to have their personal information sold.
Recently on 30th November 2023 after two-month long extensive discussions with stakeholders together with law firms, e-commerce platforms, government and other organisations related to consumer protection, observed and studied how companies are implementing these user interfaces and user experiences [2],The Central Consumer Protection Authority under the power conferred under the Section 18 of the Consumer Protection Act, 2019 (35 of 2019) issued the Guidelines for the prevention and regulation of the dark patterns.
The term “Dark patterns” according to CCPA guidelines definition,
“Shall mean 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 intend 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”[3].
The platform in the above definition means,
“An online interface in the form of any software including a website or a part thereof and applications including mobile application”[4].
The guidelines apply to advertisers, sellers, and all platforms that provide any kind of goods or services in India. The dark patterns practices listed in Annexure 1 of the aforementioned guidelines are prohibited by these guidelines. These specific dark patterns are meant to be used as guidance only; they should not be interpreted as the law, a decision, or any other set of facts or circumstances.
The Advertisers for the guidelines mean,
“a person who designs, produces and publishes advertisements either by his own effort or own effort or by entrusting it to others in order to promote the sale of his goods, products or services and includes a manufacturer and service provider of such goods,products or services"[5].
The seller for the guidelines means,
“The product seller as defined in clause (37) of section 2 of the Act and shall include any service provider”[6].
There are 13 specified dark patters, for the direction of the users.
1. False Urgency:
"False Urgency" are used to induce impulsive purchases. A product's popularity may be promoted, as in "Only 2 rooms left! Currently, thirty more people are examining this." Another tactic is to act as, there is a shortage of something to create a sense of urgency in your purchase.
2. Basket sneaking
"Basket sneaking" is the practice of websites adding extra items to your cart without your permission. You wind up spending more money than you had intended. Basket sneaking does not include things like free samples or services, or hidden costs that you are aware of before you make a purchase. For instance,they might include travel insurance with your ticket without first asking, add more services to what you're already paying for without asking, or automatically add paid services when you buy something.
3. Confirm shaming
"Confirm shaming" is the practice of websites using words, images, or audio to incite fear or shame in users in an effort to increase revenue. They want users to purchase something or continue to pay for a service, among other things. For instance, if you choose not to purchase flight insurance or if you add charity to your cart without being asked, a website may make you feel uneasy by using phrases like "charity is for the rich, I don't care" in an attempt to get you to donate.
4. Forced action
"Forced action" refers to pressuring users to take actions against their will,such as making more purchases, subscribing, or disclosing too much personal information. For example, charging more for the same service, forcing users to subscribe to newsletters in order to make a purchase, granting access through the download of irrelevant apps, requesting unnecessary information, or confusing users' privacy settings in order to get them to divulge more information than they intended when making a purchase.
5. Subscription trap
A "subscription trap" occurs when businesses make it extremely difficult to terminate a paid membership. This may involve making the cancellation procedure difficult, hiding the cancellation option, requiring payment information in exchange for a free trial, or providing unclear and confusing cancellation instructions.
6. Interface interference
Interface interference is the term used to describe how a website or app's design deceives users into performing unwanted actions by highlighting some information while hiding other crucial details. For instance, concealing the cancellation symbol in a small font or offering a light-coloured "No"option when prompted to make a purchase in a pop-up. Placing a 'X' icon to close a pop-up window that actually opens another advertisement could be another trick. Essentially, it's about creating interfaces that trick users into performing actions they weren't to.
7. Bait and switch
A "bait and switch" is a tactic in which a vendor makes a promise based on your preferences, then delivers on it. For instance, they might promote a fantastic product at a reasonable cost, but just as you are ready to make the purchase, they inform you that it is sold out and suggest a more costly but identical one. Another tactic is to entice you by having a product appear available, but when you try to add it to your cart, it says it's sold out and offers a more expensive alternative. It essentially involves enticing you in with one thing and rewarding you with something else.
8. Drip Pricing
A smart strategy known as "drip pricing" involves withholding portions of the price from the customer or hiding them until later in the process. Sometimes the price you see at checkout is not the real one; you find out about it only after you establish your purchase. Additionally, it occurs when an app is promoted as free but fails to disclose that continued use requires in-app purchases. An additional instance is when you have already paid for a service and are required to purchase an additional item in order to utilize it. To put it plainly, it has to do with not disclosing the entire cost up front or shocking you with additional charges after you've made a purchase.
9. Disguised advertisement
A "disguised advertisement" is an advertisement that blends in with the background and encourages users to click on it by appearing as news articles or user-generated content. This also applies to misleading advertisements. It is the seller's or advertiser's responsibility to clearly identify their content as an advertisement if they post it on a platform. It's important to ensure that users are aware when they are viewing an advertisement that is attempting to blend in with other kinds of content.
10. Nagging
"Nagging" is an effective tactic used by websites and platforms to continually nag users with annoying requests or interruptions in an attempt to persuade them to do something for profit. For example, continual requests to download apps from websites, persistent requests to provide your phone number from platforms claiming to be secure, or persistent requests to accept cookies or turn on notifications without offering you the option to say "NO." Basically, it's about using aggressive and persistent methods to force you to do things you may not want to.
11. Trick Question
A "trick question" is a term used by websites to mislead users and induce actions they may not have intended to take. For instance, they might ask, "Do you wish to opt out of receiving updates on our collection and discounts forever?" with choices like "Yes," rather than giving users a clear-cut option to stop receiving updates. Rather than a definite"Yes" or "No," I would prefer to receive updates" and "Not Now." Essentially, it involves employing deceptive language to nudge users toward particular answers or actions.
12. Saas billing
The method by which businesses obtain recurring payments in a software subscription model is called "Saas billing." It frequently entails using deceptive techniques or silently obtaining money from users without providing obvious notifications. For instance, charging for features that aren't used, secretly debiting accounts for subscriptions that automatically renew, or employing dishonest credit card practices are a few examples of how to turn a free trial into a paid version. Essentially, it has to do with the somewhat opaque method of user payment collection used in the software-as-a-service business model.
13. Rogue Malwares
"Rogue Malwares" are cunning programs that trick users by using scareware or ransomware.They trick people into paying for a phony malware removal tool that installs more malware after tricking them into thinking their computer is infected. Examples include accessing content on pirated platforms that prompts pop-ups with malware-filled advertisements, downloading content from pirated websites or apps that promise free content but actually contain malware in the links, and clicking on an advertisement only to have personal files locked and demanded to be paid for. Pretending to assist while inflicting harm and requesting money is the main tactic.
Dark patterns have a big impact on Indian consumers, especially in light of how much online commerce is growing. Customers are becoming more vulnerable as a result,which affects several areas:
Customers' autonomy is challenged because they frequently base their decisions on fake or wrongful reviews. Financial loss is another aspect of personal harm, as people might wind up spending more money than they originally disclosed or buying goods. Unintentional data sharing by customers gives rise to privacy concerns. The negative effects are increased by the time lost and psychological strain caused by dishonest behaviour. In an overall sense, even when the harms are invisible to the individual, consumers as a whole bear the burden. This kind of manipulation damages consumer confidence and involvement in addition to undermining competition.
The guidelines regarding dark patterns that the Central Consumer Protection Authority (CCPA) released are an important step toward protecting consumer rights in the rapidly changing online commerce environment. The guidelines are designed to prevent businesses from using deceptive tactics for profit by outlawing and controlling things like forced actions, hidden advertisements,and confirm shaming. Understanding the different types of dark patterns—such as interface disruption and subscription traps—reflects an all-encompassing strategy for safeguarding customers.
[1] Statement of Commissioner Rohit Chopra,Regarding Dark Patterns in the Matter of Age of Learning, Inc. Commission FileNumber 1723186, 2-9-2020, https://www.scconline.com/blog/post/2022/08/15/yes-or-yes-the-reality-of-dark-patterns/
[2] Sarasvati NT, (2023, September), “ConsumerAffairs Department releases guidelines to regulate Dark Patterns).https://www.medianama.com/2023/09/223-consumer-affairs-department-dark-patterns-guidelines/
[3] Central ConsumerProtection Authority. (2023). Guidelines for Prevention and Regulation of DarkPatterns.
[4] Governmentof India. (2020). Consumer Protection (E- Commerce) Rules, 2020.
[5] Government of India.(2020). Guidelines for Prevention of Misleading Advertisements and Endorsementsfor Misleading Advertisements, 2022.
[6] Governmentof India. (2020). Consumer Protection (E- Commerce) Rules, 2020.
