Behind the Screen: Unmasking the Dark Patterns That Manipulate Shoppers

Introduction

Recently, online shopping and the number of internet users have rapidly increased in India. We are expected to become the largest users of the Internet in a few years. However, there is concern about the manipulation and misleading of users. Many e-commerce players intentionally manipulate and mislead users through advertising. Unethical strategies are used to manipulate the shopper’s behaviors to increase sales by retrieving consumer personal data intrusively and taking the attention time of shoppers through misleading advertising.[1]

What are dark patterns?

Harry Brignull about Dark Patterns: “A user interface that has been carefully crafted to trick users into doing things that are not in their interest and usually at their expense”.[2]

In simple words, Dark Patterns are the user interface (UI)/user experience (UX) that have been crafted to mislead and manipulate users from making the right decision of their interest. Dark patterns have multiple kinds of manipulative practices, such as drip pricing, false urgency, privacy concerns, disguised advertising, bait and click, and choice manipulation. Department of Consumer Affairs (DoCA) and the Advertising Standards Council of India (ASCI) are both collaborative efforts to restrict the increasing prevalence of misleading practices.[3]

Recently, you have seen a pop-up when using apps or websites that ask for permission to provide a better personalized ad experience by tracking your activity. This is an example of Dark Patterns: in this way, it heavily influences on users to make a certain choice. Apps and websites use terms like “activity” and “personalized” instead of “tracking” and “targeting.” This is the reason why many users may not realize this while giving permission to do so. Most of us do not want any apps or websites to know about everything we do or where we go, but it sounds good when it comes to getting a better personalized and better experience.

Government Regulation for Dark Patterns

The government of India has taken several measures to tackle Dark Patterns in online platforms, which are considered unfair, misleading, and violate consumer rights under the Consumer Protection Act:

1. Guideline issued by the Advertising Standard Council of India: HH On June 15, 2023, the Advertising Standard Council of India (ASCI) issued guidelines for Online deceptive design patterns in advertising, released under the code for self-regulation of Advertising content in India to regulate Dark Patterns in advertising to ensure the advertisement must be honest and not misleading/manipulative.  ASCI further discussion guidelines on the paper ‘Dark Patterns – the New Threat to Consumer Protection. The guideline issued by ASCI is applicable to all advertisement platforms, such as digital media, e-commerce, airlines, food delivery, apps, and websites. Guideline discusses influencer advertising in digital media but does not talk about Digital media but influencer advertising terms as a reference according to this, digital media terms refer to any kind of communication that can be through the internet or digital network.[4]
2. Department of Consumer Affairs in press release: On 30 June 2023, Shri Rohit Kumar Singh, Secretary Department of Consumer Affairs, encouraged consumers to report manipulative online practices and provide feedback to the National Consumer Helpline (NCH) by calling on ‘1915’ or send whatapps message to 8800001915. He also advises online platforms to stop practicing ‘Dark Pattern’, which harms consumer interest.[5]
3. Digital Personal Data Protection Act, 2023: Take free and clear consent before taking personal data from individuals for processing.[6]
4. Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022: issue guidelines for maintaining standards for “non-misleading and valid advertisements.[7]
5. Consumer Protection (E-commerce) Rules, 2020: restrict e-commerce institute from practising unfair trade practices.[8]

International Regulation for Dark Patterns

United States (US):

The Federal Trade Commission (FTC) has been proactive against businesses that practice Dark patterns in their businesses.FTC released a report, “Bringing Dark Patterns to Light” which talks about Dark Patterns practices in business for manipulating users for decisions they wouldn’t intend to make, often causing harm .“Bringing Dark Patterns to Light” by FTC report highlights FTC commitment for stopping deceptive or unfair business practice which including Dark Patterns under their mandate of FTC Act.[9]

The Federal Trade Commission (FTC) has taken legal against many big companies, such as Amazon and Vonage for practicing Dark Patterns. Amazon for their manipulative interface designs, making it difficult to cancel their subscription.[10] Vonage has to refund $100 million to customers for making a difficult cancellation process for their subscriptions. [11]

European Union (EU):

European Union (EU) also has banned Dark patterns under there Digital Service Act (DSA), which is effective from February 2024.DSA highlights Dark Patterns practice from distorting or impairing user’s freedom of decision. The EU has guidelines for social media published by the European Data Protection Board, which highlight Dark Patterns practices used in social media. Patterns are used to manipulate user behavior, this makes it difficult for the user to protect their personal data and make their own decision.[12]

Major Kind of Misleading/Manipulative Practices in Dark Patterns

Drip Pricing:

The cost of good should not disclosed upfront, and at the end of the transaction or post-confirmation of purchase, the price will be revealed. This kind of misleading to consumers by initially showing a lower price and then adding extra costs during the payment, such as convenience charges, packing charges, delivery charges, platform charges etc. There is a guideline by ASCI to ensure transparency pricing by prohibition the practice of ‘Drip Pricing’ that requires all common charges will be included in the price displayed in the advertisement or listing.[13] This rule said that the price shown in ads or websites must include all the charges that apply to most buyers. The Consumer Protection (E-Commerce) Rules, 2020, already state that the seller has to display the total price as a single figure along with the detailed breakdown of charges, and this guideline includes advertisements as well to show the total price.[14]

Bait and Switch:

The misleading advertising concept is broader day by day in the digital age. Consumers are commonly face the problem of “Bait and Switch” tactics. Bait and Switch is a deceptive practice where a company advertises a product at a lower price to attract customers, but after that they try to sell different products at the higher price or lower quality, then try to make the purchase. Low prices attract customers in, but instead of getting the advertised product, they offer substituted products. This tactic is punished by law.[15]

The guideline states that any advertisement can suggest one outcome if comes different result is considered misleading. Therefore, advertisers are required to ensure that the actual/exact product, which includes a specific model, price, and other details that have been shown in the ad, is actually available to the consumer.[16]

False Urgency:

We frequently see advertisements that claim only “limited stock” is available this tactic creates a fake urgency in the market among customers, pressuring consumers to make quick decisions to purchase. They create an environment where there is a shortage of supply than it actually is. This kind of practice comes under misleading practice. The ASCI provides guidelines for addressing this kind of misleading practice. The advertiser has to prove their claim of limited availability, and the stock has to be low enough to justify it. This guideline ensures honesty in advertising and prevents misleading information, which helps consumers choose suitable options.[17]

Disguised Advertisements:

Disguised advertisements are deceptive practices where ads they made intentionally to mimic genuine content, such as editorial pieces and related articles. This kind of blending of ads with real content confuses users, making them attract more likely to click on the ads in believe it’s a part of the content they want. mimicking interface element or related content make more viewing time and clickthrough rate; this benefits advertisers with more sales and gain more ad revenue.[18]

To resolve this deceptive practice, regulating guidelines have been provided to ensure transparency. Advertisers have to clearly label ads that are made like editorial or organic content, making it obvious that they are advertisements.[19]

Guideline for Prevention of Misleading Advertisement and Endorsement for Misleading Advertisement,2022, mandates that endorsers have to disclose any material connections with manufacturers, advertisers, or trade that could affect the trustworthiness of their endorsement, and also influencers have to disclose their relationship with the brand’s to maintenance transparency. this step ensures that consumers can clearly differentiate between ads and genuine content.[20]

Making it difficult to cancel subscriptions or charges: 

There is a common practice in Dark Pattern that makes it difficult for consumers to cancel their subscriptions and charges, often them to pay for goods or services for which they don’t have their consent. Deceptive subscription sellers may try to puss consumers into ongoing payments for subscriptions that they didn’t want to buy or to continue.[21] There is a case against ABCmouse, ABCmouse is an online learning site accused of making it extremely difficult to cancel free trials and subscriptions despite claiming “Easy Cancellation.” When consumers try to cancel a trial has a complex UI, difficult to find, and very confusing cancellation process, often site is redirected to many promotions and links that create confusion and take them away from the cancellation path.[22]

Guidelines issued by the Department of Consumer Affairs (DoCA) and the Advertising Standards Council of India (ASCI) which make to prevent consumers from deceptive practices, which is prohibited in the Consumer Protection Act 2019. [23]This guideline targets dark patterns in multiple areas like e-shopping, e-ticketing, restaurants, and travel from digital platforms was needed to remove deceptive tactics and ensure a consumer-friendly environment, which is effective from September 1, 2023.[24]ASCI further considers adding tools for detecting and blocking dark patterns or platforms, providing clearer and more accessible settings and privacy options in the future.

Recommendation 

To resolve the issue of Dark Pattern, we need a collaboration between various stakeholders.. An Honest advertiser and their platforms always have transparency they always ensure consumers are well-informed by their advertisements without being overwhelmed, they always make policies that prioritize consumer value over profits.

In India, several regulations have already been implemented. DoCA have warned cab and two-wheeler apps about their charges and algorithms, created a group to resolve the issue of online fake reviews.[25] ASCI resolves issues through the existing code misleading ads, which applies to all media, including online platforms. The ASCI code prohibits misleading ads, but it is not for exploiting consumer trust or ignorance. Multiple of Dark Pattern practices are violating this code, and they have to be expanded to address issues related to Dark patterns

Internationally, the government has to enhance its monitoring capability, investing in AI to detect Dark Patterns and manipulative practices. Currently, the legation for Dark Practice is evolving. Organizations must have to maintain a good culture for consumers and meaningful involving to ensure a positive online experience.

Conclusion

The introduction of guidelines to fight against Dark Patterns practices in India has made a remarkable advancement in protecting consumers from deceptive digital practices. Regulations that are made in existing laws are designed to protect and minimize manipulative tactics used by online platforms and create a good environment in the digital market for consumers. However, a real impact is only when the law enforces strictly and the company is ready to adapt in their practice.

Internationally, the use of AI to detect manipulating practices is becoming more important, and India must follow suit to protect consumers from manipulative practices.[26]

There is a challenge to differentiate between persuasive advertising and manipulative Dark Patterns this is complicated by the rapid growth of these practices. Increasing awareness among consumers is crucial, but maybe it is not totally enough to protect fully consumer against sophisticated Dark Patterns. There is a need for voluntary transparency by businesses along with regulatory vigilance, is needed. This is not just about consumer protection but also about creating integrity in digital commerce.

Author: Rahul Kumar Gaur, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.

[1] ‘Dark Patterns and Its Impact in the Digital World’ (Economic Times Retail) <https://retail.economictimes.indiatimes.com/blog/dark-patterns-and-its-impact-in-the-digital-world/106393533#:~:text=Amid%20a%20rise%20in%20online,exploiting%20cognitive%20and%20behavioral%20biases >accessed 26 August 2024.

[2] ‘Recent FTC Report Shows Increase in Dark Patterns’ (The National Law Review) <https://natlawreview.com/article/recent-ftc-report-shows-increase-dark-patterns> accessed 26 August 2024.

[3] ‘Press Release’ (Press Information Bureau) <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1932105&ref=static.internetfreedom.in> accessed 26 August 2024.

[4] ‘Code Book’ (Advertising Standards Council of India) <https://www.ascionline.in/wp-content/uploads/2024/04/Code-Book_Codes_Webready.pdf> accessed 26 August 2024.

[5] ‘Press Release’ (Press Information Bureau) <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1936432> accessed 26 August 2024.

[6] ‘Digital Personal Data Protection Act 2023’ (Ministry of Electronics and Information Technology) <https://www.meity.gov.in/writereaddata/files/Digital%20Personal%20Data%20Protection%20Act%202023.pdf> accessed 26 August 2024.

[7] ‘Press Release’ (Press Information Bureau) <https://pib.gov.in/PressReleasePage.aspx?PRID=1832906> accessed 26 August 2024.

[8] ‘E-commerce Rules’ (Department of Consumer Affairs) <https://consumeraffairs.nic.in/sites/default/files/E%20commerce%20rules.pdf> accessed 26 August 2024.

[9] ‘FTC Report Shows Rise in Sophisticated Dark Patterns Designed to Trick and Trap Consumers’ (Federal Trade Commission) <https://www.ftc.gov/news-events/news/press-releases/2022/09/ftc-report-shows-rise-sophisticated-dark-patterns-designed-trick-trap-consumers> accessed 26 August 2024.

[10] ‘FTC Takes Action Against Amazon for Enrolling Consumers in Amazon Prime Without Consent’ (Federal Trade Commission) <https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-takes-action-against-amazon-enrolling-consumers-amazon-prime-without-consent-sabotaging-their> accessed 26 August 2024.

[11] ‘FTC Sends Nearly $100 Million in Refunds to Vonage Consumers Who Were Trapped in Subscriptions Through Dark Patterns’ (Federal Trade Commission) <https://www.ftc.gov/news-events/news/press-releases/2023/10/ftc-sends-nearly-100-million-refunds-vonage-consumers-who-were-trapped-subscriptions-dark-patterns> accessed 26 August 2024.

[12] ‘Press Release’ (European Commission) <https://ec.europa.eu/commission/presscorner/detail/en/IP_24_3761> accessed 27 August 2024.

[13] ‘Drip Pricing to Basket Sneaking: How Airlines Deploy Deceptive Tactics’ (Business Standard) <https://www.business-standard.com/finance/personal-finance/drip-pricing-to-basket-sneaking-how-airlines-deploy-deceptive-tactics-124081900216_1.html> accessed 27 August 2024.

[14] ‘Press Release’ (Press Information Bureau) <https://www.pib.gov.in/PressReleasePage.aspx?PRID=2004520> accessed 27 August 2024.

[15] ‘Role of Dark Patterns in Consumer Decision Making and Data Disclosure’ (SCC Online) <https://www.scconline.com/blog/post/2024/07/12/role-of-dark-patterns-in-consumer-decision-making-and-data-disclosure> accessed 27 August 2024.

[16] ‘Code Book’ (Advertising Standards Council of India)< https://www.ascionline.in/wp-content/uploads/2024/04/Code-Book_Codes_Webready.pdf> accessed 27 August 2024.

[17] ‘Hidden Fees, Drip Prices in Booking Tickets: How BookMyShow & PVR Trick You’ (Business Standard) <https://www.business-standard.com/finance/personal-finance/hidden-fees-drip-prices-in-booking-tickets-how-bookmyshow-pvr-trick-you-124082300336_1.html> accessed 27 August 2024.

[18] ‘Disguised Ads’ (Deceptive Design) <https://www.deceptive.design/types/disguised-ads> accessed 27 August 2024.

[19] ‘Disguised Ads, Hidden Costs: Regulator ASCI Now Tackling Dark Pattern Ad Tactics, Says Its CEO’ (The Print) <https://theprint.in/india/disguised-ads-hidden-costs-regulator-asci-now-tackling-dark-pattern-ad-tactics-says-its-ceo/1202840/> accessed 27 August 2024.

[20] ‘Press Release’ (Press Information Bureau) <https://pib.gov.in/PressReleasePage.aspx?PRID=1832906> accessed 27 August 2024.

[21] ‘FTC Report Shows Rise in Sophisticated Dark Patterns Designed to Trick and Trap Consumers’ (Federal Trade Commission) <https://www.ftc.gov/news-events/news/press-releases/2022/09/ftc-report-shows-rise-sophisticated-dark-patterns-designed-trick-trap-consumers> accessed 27 August 2024.

[22] ‘Age Learning Inc (ABCmouse)’ (Federal Trade Commission) <https://www.ftc.gov/legal-library/browse/cases-proceedings/172-3186-age-learning-inc-abcmouse> accessed 27 August 2024.

[23] ‘Consumer Protection Act 2019’ (Department of Consumer Affairs) <https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf> accessed 27 August 2024.

[24] ‘Guidelines for Online Deceptive Design Patterns in Advertising’ (Advertising Standards Council of India) <https://www.ascionline.in/wp-content/uploads/2023/05/Guidelines-for-Online-Deceptive-Design-Patterns-in-Advertising.pdf> accessed 27 August 2024.

[25] ‘Centre Warns Cab Aggregators of Strict Action for Unfair Trade Practices’ (Economic Times) <https://economictimes.indiatimes.com/tech/technology/centre-warns-cab-aggregators-of-strict-action-for-unfair-trade-practices/articleshow/91465856.cms?from=mdr> accessed 27 August 2024.

[26] ‘How Dark Patterns and Artificial Intelligence Intersect in the Digital Age’ (Medium) <https://medium.com/kinomoto-mag/how-dark-patterns-and-artificial-intelligence-intersect-in-the-digital-age-stewart-townsend-78812cd590c3#:~:text=Dark%20patterns%2C%20in%20the%20simplest,by%20taking%20it%20even%20further> accessed 27 August 2024.