The advancement of technology has reshaped the fundamental principles of the market. By offering digital services, often free of cost, multiple digital platforms are manipulating consumer choices and deliberately misrepresenting information. These digital platforms use consumer-targeted marketing strategies to influence the consumer’s decision-making, leading to unintended purchases and overconsumption of data. Consumer-targeted marketing strategies yielding bias in the minds of consumers and forcing them to make decisions contrary to their preferred decisions are called dark patterns.
The term “dark patterns” has been defined under the Guidelines for Prevention and Regulation of Dark Patterns, 2023 (“Guidelines”). Section 2(1)(e) of the Guidelines defines dark patterns as "any practice or deceptive design pattern using UI/UX (user interface/user experience) interactions on any platform designed to mislead or trick users into doing something that they originally did not intend or want to do."
The Advertising Standards Council of India (“ASCI”) also plays a huge role in identifying dark patterns in the Indian market. In a study report by ASCI, 52 out of 53 top Indian applications/platforms use dark patterns to deceive their users. This is done by using misleading advertisements and/ or unfair trade practices, violating consumer rights.
Scope of Guidelines
As per Section 3 of the Guidelines, all (i) platforms that are systematically offering goods or services in India, (ii) advertisers, and (iii) sellers are covered under these Guidelines. Further, provisions of the Consumer Protection Act 2019 will apply in case of any violation of the Guidelines. Failure to comply with the Guidelines may result in a fine or imprisonment.
Kinds of dark patterns
The Guidelines list a total of thirteen dark patterns, which are false urgency, basket sneaking, confirm shaming, forced action, subscription trap, interface interference, bait and switch, drip pricing, disguised advertisement, nagging, trick question, SaaS billing, and rogue malware. The scope may widen subject to dark patterns specified by the Central Consumer Protection Authority from time to time.
Dark patterns tend to play with human psychology by using manipulative tactics. For example, the ‘false urgency’ pattern where the application/platform will display “Only three pieces left”, “Only 2 hours left for the sale to end”, or “40 other people are viewing this product”.
Another such instance may be ‘basket sneaking’, where the application preselects options for payment towards donation/ charity.
When cancelling a subscription or fee, several applications display notifications like “Not now, maybe later” and/ or “I don’t want to secure my trip” instead of a simple “No”, constitutes ‘confirm shaming.'
Every active user faces the deceptive tactics of these applications on a daily basis. To understand, let us take a realistic example through a hypothetical name, Rahul, who downloads an application on his phone for online purchasing.
After Rahul signs in to the application, several notifications reading “Claim Now!”, “Hurry Up”, “Last Chance”, and “Offer ends in 00:30 minutes” start popping on his phone screen (False Urgency and Nagging). Out of all, there were a few notifications that could not have been removed simply as they did not have any (X) button. These notifications required Rahul’s special attention to open the notification and then close the application (Bait and Switch). After Rahul proceeds to pay, he notices that his purchase includes pre-checked boxes for membership, charity or insurance (Basket Sneaking). When Rahul unticks the insurance option, a pop-up notification of “Sure you want to risk your product?” (Confirm Shaming) appears on his screen.
These user interfaces manipulate consumers to make impulsive and rash decisions by making immediate and unnecessary purchases without giving them much thought. Through these misleading ways of advertising and representing products, consumer autonomy is put in the back seat.
Dark patterns are not merely interfering with consumer choices but are also disturbing healthy market practices. When consumers are forced to use a certain application, it creates an anticompetitive practice in the market. By making it hard to unsubscribe to any service, the application coerces the consumers into using the application for a much longer period, that is not intended by the consumers.
A few platforms, without consent, pre-tick the auto-pay option which regularly deducts an amount from the consumer’s bank account towards such a platform. By unilaterally ticking the auto-pay option and by making it hard to un-tick such an option, the consumers are forced to use the platform. This manipulation reduces the overall welfare of the consumers by impeding fair and effective competition.
Additionally, in light of the Guidelines, the State Consumer Disputes Redressal Commission in Ashwini Chawla v. Flipkart observed that by providing alluring online advertisements and bald assurances of delivering first-hand products, Flipkart had indulged in dark patterns along with unfair trade practices.
When the consumer was searching for a pair of socks by the Marc Jacobs brand and ended up buying a pair of socks from another brand called Marc Cotton Ankle Unisex Socks, the State Consumer Disputes Redressal Commission in Jatin Bansal vs M/S Amazon Reseller Services Pvt. Ltd. observed that by showcasing a false product under the search result of Marc Jacob, which manipulated the consumer into buying something which was never intended, Amazon was found guilty of deliberately and fearlessly engaging in dark patterns.
There are many instances where, when searching for a particular service or product, the search engine first displays sponsored advertisements before showing the actual results. These tactics are a form of dark patterns. Placing advertisements at the top of search results before the actual service or product is a deceptive practice that misleads consumers.
For instance, while searching “Zara Shirt” on Amazon, the first search result is a sponsored advertisement by another brand. By placing products of one company under the name of another company, these e-commerce platforms are increasing unfair trade practices. By no stretch can this be termed as fair competition.
Where the voice and image of a celebrity were, without consent, falsely portrayed in a manner that he is endorsing a product, the Hon’ble Delhi High Court observed in the case of Anil Kapoor v. Simply Life India & Ors. that using voice and image of a celebrity without his consent amounts to infringement of his personality rights. It was also observed that practices which mislead and trick consumers and subvert or impair their decision-making skills are dark patterns. By such acts, e-commerce platforms are not only infringing on the rights of an individual but are also deceiving consumers through dark patterns.
In view of how “dark patterns” have been defined, there is perhaps merit in also arguing that bidding on trademarks by competitors as well as giving competitors a platform to bid on rival trademarks so as to generate a sponsored advertisement of the competitor’s website on the search engine result page may also constitute a case of dark patterns. There are several cases pending in Courts, wherein registered proprietors have sued their competitors and the platform owners for infringement of trademarks under Section 29 of the Trademarks Act, 1999. It would be interesting to see if in those cases registered proprietors allege sponsored advertisements to be dark patterns.
Dark patterns have turned into a dark reality for today’s e-commerce industry, affecting individuals, businesses and markets. The need of the hour is to regulate these dark patterns. Even though the Guidelines were enforced in 2023, the use of dark patterns has not been reduced to date. The Indian market needs stringent laws to regulate advertisements and the user interface of the platforms. The platforms should be put in strict compliance with the Guidelines. These platforms should adopt easier ways for consumers to use their applications.
As the regulatory bodies in India and other countries are evolving to regulate the dark patterns, it is high time that the e-commerce players pay more attention towards consumer protection, unfair trade practices and infringement of IP rights. Given that the Guidelines are also in force, these e-commerce players should pledge to put in fair and best practices and corrective measures to safeguard consumer choices and healthy competition.
About the authors: Kratvi Kawdia is an Associate and Sidhant Goel is a Partner at Sim and San.
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