In the vast landscape of the internet, where convenience and user engagement reign supreme, a shadowy realm lurks beneath the surface—dark patterns. These patterns are a digital maze designed to subtly manipulate internet users. From misleading prompts to sneaky traps, dark patterns are the puppet masters of the online experience—coaxing, cajoling, and sometimes even coercing users into unintended actions.
Coined in 2010 by Harry Brignull, the term ‘dark patterns’ refers to several methods used to misguide users into giving their money, time or personal information without their informed consent. While this phenomenon is not exclusive to the internet, the digital arena has made it more frequent. This presented a massive problem to consumers earlier when there were little to no laws on privacy. As Brignull says, “It’s a bit like invisible health effects from breathing in fumes or getting a radiation dose: At the time, you might not realise it, but it has a hidden impact on you.”
Privacy is merely one aspect of dark patterns wherein applications fraudulently retrieve personal information from users without their approval. This can be done in numerous ways like purpose overreach, lack of or painstaking procedure of withdrawal of consent, sharing of data with third parties and other offences regulated in most countries by specific personal data laws. However, tactics , such as bait and switch and basket sneaking are somewhat tricky to identify, making it even more harmful and hence pressing the need for a dedicated set of rules governing such malpractices.
The US state of California as well as the European Union and Australia have statutes which address the flawed notions of consent and attempt to prevent internet services from misusing the absence of public knowledge on data privacy and its regulation. The US’s Federal Trade Commission (FTC) has acted promptly against companies for privacy violations using dark patterns. In the case of FTC vs Amazon, the commission accused Amazon of deliberately deceiving millions of customers by employing a manipulative and deceptive user interface designed to covertly enrol them in Amazon Prime subscriptions. Amazon also knowingly created a complex cancellation process for Prime members due to their potential negative impact on the company’s financial interests.
India has had a law protecting consumer rights for quite some time. However, recently the parliamentary deliberations led to the release of guidelines on the prevention of dark patterns. Section 18 of the Consumer Protection Act 2019 gives the Central Authority the power to prevent unfair trade practices as well as ensure no misleading or false advertisements of goods and services are or published. In exercising this power, the Central Consumer Protection Authority released guidelines on the takedown of dark pattern usage by advertisers and sellers. Specifically, it highlighted 13 dark patterns which are now banned. Hence, an e-commerce platform can now be sued in Indian territory if its earlier practice of ‘forced action’ (under Section 4 of specified dark patterns) continues.
The gazette notification could have far-reaching consequences for numerous e-commerce platforms. Until now, what was considered to be innovative advertising can now be why a company has to face lawsuits. Amendments to user interface models are not only recommended but mandated. One crucial takeaway is the need to clearly indicate what type of content is an advertisement.
Transparency is the bedrock of trust in the online world, where each and everyone is a stranger and businesses can bolster this trust by being forthright about their promotional content. Another fundamental aspect is the transparent disclosure of costs or fees associated with products or services. Consumers appreciate clarity regarding financial matters, and businesses can set a positive tone by openly communicating any potential expenses. Businesses should ensure there exists a clear-cut and defined process for users to unsubscribe from subscriptions or withdraw the consent they had earlier given. This not only respects the autonomy of the consumer but also reflects a commitment to customer satisfaction.
Often, the payment process in e-commerce platforms is exceptionally swift and does not usually demand much effort from users, saving us a wealth of time. However, under the garb of speedy transactions, we may miss out on the breakup of charges. Since the number is so minuscule, it hardly catches our attention and comes in the form of a pre-ticked box, which several companies have adopted. The preselection of options, especially concerning privacy rights, forms a crucial element of ethical business practices. Users should be free to make choices without being nudged in a particular direction and thus businesses should avoid feeding themselves money.
Similarly, language plays a critical role in user interactions, and businesses should use respectful communication that avoids shaming consumers for exercising their rights. For instance, by suggesting an option that says, “No, I would like to travel uninsured”, platforms trick users into believing that it is an unsafe option and produce guilt that could easily be called coercive. This also includes double negatives or trick questions that may confuse consumers and deteriorate the overall user experience. A positive and intuitive interaction fosters customer satisfaction, loyalty, and positive word-of-mouth. Substantiating all claims made is also essential in maintaining credibility. Businesses should ensure that their statements are backed by evidence, avoiding using unverified information. This not only upholds ethical standards but also contributes to establishing a trustworthy brand image.
(Views are personal)
Nikhil Naren, Assistant professor, Jindal Global Law School, and counsel, Scriboard