Dark patterns: Guidelines to prescribe penalties for erring digital businesses

The guidelines for what’s known in the industry as dark patterns, or deceptive patterns, are expected in a matter of weeks, said an official informed about the development.

The government decided to specify the penalties because the underlying consumer protection law does not specifically name ‘dark patterns’ as an unfair practice, although it has a broad scope and covers all deceptive practices and misrepresentations.

This will not only provide e-commerce companies clarity on the consequences of indulging in misleading trade practices, but also make it easier for courts to deal with consumer complaints.

Dark patterns are designed deliberately to manipulate users into making choices such as buying a more expensive product, paying more than initially disclosed, sharing data, or making choices based on false or paid-for reviews. 

“Dark pattern comes under the umbrella of unfair trade practice. Nudging a consumer in a direction where he does not want to go is an unfair practice. If anyone goes to court, the perpetrator will be punished. But sometimes even e-commerce players may not be aware of it," said the official mentioned above. 

“To give clarity to both businesses and consumers about the applicable penalty for such unfair trade practices, the guidelines will specify that.  It will also make it easier for courts."

The guidelines, framed following consultation with the industry and public feedback, will be issued shortly, the official said.

Queries sent to the department of consumer affairs and the ministry of law and justice remained unanswered at press time.

Experts described the regulations as a step in the right direction. 

“Hopefully, the final guidelines that will be implemented will build in compliance mechanisms and reporting requirements in a balanced manner, enabling effective tracking of dark patterns, while also not burdening business operations," said Sweta Ranjan, Partner at law firm Economic Laws Practice (ELP). “... the effectiveness of the proposals would depend on their implementation and compliance mechanisms, which are yet unclear."

Elaborating on how dark patterns work, Ranjan said marketing strategies of digital businesses are often premised on consumer psychology. “Dark patterns have evolved based on research which demonstrates that consumers may be manipulated into making unintended choices and purchases," explained Ranjan.

Digital marketplaces are constantly evolving and the list of dark patterns in the guidelines would need to be regularly updated, said Sanya Sud, Principal Associate at law firm Saraf & Partners. “There needs to be an element of “harm" to be brought in to assess the severity of the contravention, which should govern the ultimate penalty," said Sud.  

“After extensive consultation with the industry and feedback from IITs and IIMs, we added three more dark patterns to the existing 10 listed in the draft regulations," the official quoted above said. “We will soon be issuing the guidelines, which have gone to the law ministry for vetting."

Dark patterns also include creating false urgency with claims such as ‘only 2 of a particular stock is left’, and basket-sneaking, which refers to adding products, services or donations during the checkout process without a user’s explicit consent. These fall under the ambit of “unfair trade practices and misleading advertisements" of the Consumer Protection Act, 2019.