Dear Reader, 

The 25^th edition of the Spotlight focuses on the Draft Guidelines on Prevention and Regulation of Dark Patterns, 2023. The Ministry of Consumer Affairs, Food and Public Distribution, Government of India has invited comments on the proposed guidelines. CUTS submitted its comments, which are accessible here. To make the guidelines more accessible to the general policy populace, we are releasing a spotlight on the issue.

We look forward to hearing your comments and suggestions!

Draft Guidelines on the Prevention and Regulation of Dark Patterns

Dark patterns, also known as deceptive designs, involve the deception and manipulation of users by using elements of the choice architecture. This architecture encompasses the structure and presentation of choices exploiting the psychological vulnerabilities of users. It refers to strategies employed by websites and apps to make users perform actions they did not intend to or discourage behaviours that are not advantageous for the companies. In simple terms, these manipulative tactics deceive and trick users into taking actions that primarily benefit companies, often at the expense of the user's experience.
 
A few types of dark patterns:

• Bait and Switch:  This method involves the presentation of false or misleading information that initially aligns with the interest of the user However, upon interaction, the information swiftly changes, often diverging significantly from the user's expectationsThis technique is a trick that businesses generally use to get more clicks. An example is observed in the Windows 10 dialogue box, where clicking the ‘X’ button initiates an unwanted upgrade, contrary to the user’s intent.
• Hidden Costs: It is a technique whereby when a specific price is displayed for a product or a service, the price unexpectedly or considerably increases (taxes and delivery fees) once the user moves ahead with the checkout.
• Forced Continuity:  In this method, users are forced to commence a free trial by providing their card details or are mandated to enter their email to access a website or app. Opting out of these requirements or skipping such steps is deliberately made challenging or nearly impossible, constraining user choices and introducing self-interest strategies.
• Confirm Shaming: This approach involves using a phrase, video, audio or any other means to evoke feelings of shame, ridicule or guilt within users. The intent is to influence the users to act in a certain way, compelling them to purchase a product or service from the platform or continue a subscription to a service.
• Disguised Ads: These are advertisements designed to look like other types of content, such as news articles or user-generated content. The intent is to flawlessly mix promotional material with regular content, possibly misleading users into interacting with or considering the advertised product or service.
• Interface Interference: This tactic involves making it difficult for consumers to take certain actions, such as cancelling a subscription or deleting an account.

1. Supporting Consumer Interest Groups and Adoption of Regulatory Impact Assessment (RIA) Mechanisms: CUTS advocates for the adoption of RIA which involves a participatory approach via a public consultation to assess such impact of dark patterns, determine costs and benefits, and select the most appropriate regulatory proposal.
2. Effective Coordination Mechanism: Highlighting the necessity for an effective coordination mechanism, CUTS stresses the importance of collaboration among different ministries and government departments dealing with issues in information technology, consumer affairs, finance, women, and child welfare.
3. Increasing the Scope of the Guidelines: Addressing concerns about the limited scope of the draft guidelines, CUTS emphasises that broadening the scope is essential to enhance the regulator’s efficacy in overseeing and controlling the use of dark patterns. Thus, an expansion of the draft guidelines is recommended before their enforcement.
4. Raising Consumer Awareness: To empower consumers, CUTS recommends the involvement of the Central Consumer Protection Authority (CCPA), in supporting relevant stakeholders, such as the Central and state governments, businesses etc. to conduct user awareness generation and capacity-building activities. Involving consumer interest groups in awareness and capacity-building endeavours will enable consumers to identify and understand 'dark patterns' for their benefit, enhancing their ability to make informed choices.

Annexure
 
Specific Comments
 
1. Clause (v): The clause is technical and not sufficient to convey its meaning with clarity. Illustrations can be added to explain subscription traps as a category of dark patterns so that it is more comprehensive.
 
2. Clause (vi): The definition of interface interference can include ethical designs that can improve the overall framework of dark patterns and their regulations. For example, it may be possible to decrease friction and improve convenience for consumers when using behavioural data to learn their preferred payment methods and changing the user interface to display the most popular payment method first.
  
3. Expanding the scope of Annexure 1: One of the illustrations of dark patterns is a misleading or deceptive UI/UX design that tries to manipulate or trick the human user into acting in a way they might not have otherwise. Illustrations are of vital importance when it comes to interpreting the intention of the legislature and cannot be ignored without justified reasons. They are useful to avoid ambiguity and increase the accessibility of the law to the public.
 
Guideline Specific Comments

1. Definitions Clause (e): CUTS commends the detailed explanation of dark patterns provided in the guidelines. The given detailed types of dark patterns and their definition can be further divided into content-based patterns and interface-based patterns. Content-based patterns refer to the actual content and therefore also to the wording and context of the sentences and information components.
2. Definitions Clause (j): In these guidelines, the term “user” corresponds to any person who accesses or avails any computer resource of a platform. The current focus implications may be on graphical user interfaces (e.g., used for computer and smartphone interfaces). However, dark patterns’ impact also applies to voice-controlled interfaces (e.g., used for smart speakers) or gesture-based interfaces (e.g., used in virtual reality) which should be added to the guidelines.
3. Guideline 3: The guidelines apply to all platforms, systemically offering goods and services in the country, advertisers, and sellers. These are general terms which may have far-reaching implications within individual sectors. The guidelines’ application on specific issues of dark patterns in various sectors such as e-commerce, telecom, social media platforms, fin-tech etc. need to be established and elaborated upon.
4. Guideline 4: It is prohibited for any person including platforms to engage in dark patterns. The guideline is straight-jacketed and lacks a graded approach. It would be beneficial for the stakeholders to understand the degrees of engagement and possible outcomes of the same.
5. Guideline 6: The guidelines lack a reporting mechanism whereby the users can report such cases on dark patterns. The existing National Consumer Helpline should be customised for reporting dark patterns that users witness or interact with.