With the introduction of e-commerce in India and the rise of apps offering goods and services similar to each other, companies are undertaking descriptive practices to entrap the consumer and tackle such an impeding issue. While exercising its power under Section 18 of the Consumer Protection Act, 2019, the Central Consumer Protection Authority notified Guidelines for Prevention and Regulation of Dark Patterns, 2023 (herein known as the “Guidelines”). These guidelines aim to supplement the guidelines for the prevention of misleading advertisements and endorsements for misleading advertisements, 2022 and are aimed at preventing descriptive practices that the companies use to entrap customers. Such practices that mislead consumers against their will are known as ‘dark patterns.’

The aforementioned Guidelines apply to all platforms that offer goods and services, such as Amazon, advertisers such as Instagram, Facebook, or Google, and sellers who sell their goods directly through websites such as Addidas.

The companies are involved in several practices that qualify as Dark Patterns. When consumers are coerced into buying a good or service by creating a sense of false urgency or scarcity, even when aggregators have sufficient inventory or popularity that does not exist, this practice is known as False Urgency. Once a consumer has added goods or services to his shopping cart and proceeds to check out, he pays a charity or donation without consent; this practice, which online websites do to inflate end-payment, is known as Basket Sharing. If the consumer watches a video or hears audio or is exposed to the phrase, which creates a sense of fear, shame, or guilt in the user's mind, nudging him to subscribe to the program or purchase a good, this practice is termed Confirm Shaming. When the Consumer is forced to buy a product to buy the product he wants, this is known as Forced Action. The practice by which online websites and apps make unsubscribing to them such a complex and lengthy process, thereby making it difficult for the consumer to unsubscribe; this form of dark pattern is known as a subscription trap. Using data collected from the user to highlight specific information for a product and hiding relevant information about the other product intends to misdirect a user from making an informed decision; this is known as interface interference. Advertisement of a product based on the user's earlier action to show outcome A but deceptively giving outcome B to the consumer; this is known as Bait and Switch. Drip Pricing is a practice by which the price of the product is revealed to the consumer when the consumer reaches the payment stage; a product advertised as free may not turn out to be free. Making advertisements that are masked as articles to make the consumers click on them is known as Disguised Advertising. Naggin is a practice by which repeated interactions disrupt user experience to trigger a transaction and make gains. Using Vague language to direct a user from taking a desired action practice is known as a Trick Question. Using software as a service Business model to get recurring payments from Consumers is known as Saas Billing. Misleading or tricking a user into believing a virus on the computer, compelling them to pay for fake malware tools; this practice is known as Rogue Malware.

The consumer laws place the burden of proof on the Complainant in cases of deficiency of goods or services; in the case of Dark Patterns, it will be difficult for the Consumer to establish that the E-commerce platforms were involved in descriptive practices targeting them.

If we take, for instance, cases under false urgency that compelled the user to buy the product, it will be tough for the consumer to prove that there was a limited quantity of a good or a service that left; for instance, on Big Billion Day, the Consumer bought an I-Phone since the platform showed that only 5 units are available to lead to the purchase of the said product, at this instance the reasonable argument that the opposite party could quickly advance is that Platform received Fresh Inventory of the Product. Therefore, at the time of sale, there were only 5 phones left, which were later replenished.

If we examine it from the aspect of basket sneaking, one argument against the contention of the Complainant would be that the Consumers always retain the option of removing the donation from the shopping cart before paying for the same, the donation or subscription to the program may be added by default, but the Consumer can permanently remove them if he so chooses to do so.

In case of confirming shaming consumer buys a product because of fear or ridicule that consumer may be exposed to for not purchasing a product, one of the most compelling arguments to counter this is to say that the aggregator is trying to spread awareness about purchasing a good or service and not compelling a consumer to buy the product. One such instance is insurance company advertisements, which create a sense of fear among the users if they have not subscribed to life insurance. The company may claim that the ads spread awareness, but one of the objectives of showing ads is to ensure people buy insurance from their website.

Under interface interference, e-commerce companies use the data collected from the user to showcase products with specifications that are desired by the consumer or hide relative information from another product to misdirect the consumer from buying that product; a prominent example of this would be that of Zomato which allows restaurants to get listed on its platform but will advertise them and put them in a central place when the restaurants pay commissions, these restaurants based on the data collected shall showcase those restaurants which match the preference as well as have produced to be sponsored before other Restaurants.

In the ever-evolving landscape of digital interfaces and Consumer interactions, the prevalence of dark patterns has underscored the need for robust regulatory safeguards. These manipulative design tactics, aimed at nudging or coercing users into actions they may not intend, erode trust and undermine the fundamental principles of user autonomy and choice.

Introducing the Guidelines by the Consumer Authority is a step in the right direction to protect consumers from E-Commerce aggregators and marketplaces. Still, it is not devoid of certain shortcomings left by the legislation.

To address such dark patterns, a multi-faceted approach is required to combine regulatory oversight, industry self-regulation, and user education.

By - Prapti Allagh and Karan Kapoor