UNDERSTANDING THE DARK PATTERNS

Recently a joint consultation was held on the dangers of “Dark Patterns” with stakeholders by the Department of Consumer Affairs and the Advertising Standards Council of India (ASCI). The Ministry of Consumer Affairs, Food, and Public Distribution formed a task force to look into this issue and to form guidelines for the protection of consumers against Dark Patterns. The ASCI has developed norms regarding this and the Government of India is looking to establish standards against “Dark Patterns”.

Dark Pattern and Its Use

The term was coined in 2010 by Harry Brignull who was a user experience designer. A Dark Pattern or Deceptive Pattern is a user interface that has been designed to mislead or manipulate users to act against their interests like purchasing an expensive product, paying more than what was initially disclosed, sharing personal information, and so on.

Image Credits : https://www.vox.com/recode/22351108/dark-patterns-ui-web-design-privacy

Today the Dark Patterns are widely visible in many social media and online platforms. It is a fact that Dark Patterns are employed by even popular social media companies and big technology firms like Google, Microsoft, Facebook, Apple, Linkedin, Skype, Amazon, and the list continues. They make use of such methods to attract users to their advantage. There are several instances when these companies were caught using Dark Patterns.

The European Union accused Amazon of the confusing multi-step cancellation process of the Amazon Prime membership and as a result in 2022, Amazon made the process of cancellation of subscription easier for their European customers. In the case of Linkedin, the users often receive sponsored messages from many influencers and it is very difficult to block this as it includes multiple steps in disabling this option. Youtube which is owned by Google is also found using the tool of Dark Pattern. It often asks the users to pay for its YouTube premium membership with frequent pop-ups, and also does not allow viewers to view the last few seconds of a video by showing thumbnails of other videos. If we pay attention to our daily activities on social media and other such platforms many such instances of usage of dark patterns can be identified.

Types of Dark Patterns

• Urgency:- Force users to take an action or to make a purchase by creating a sense of urgency or scarcity.

• Tricks:- Force users to do things that they do not want to do.

• Forced Continuity:- Give a trial first and then change to a paying scheme all of a sudden without any warning.

• Nagging:- Websites force you to download apps or to give personal information like phone numbers by signing up.

• Subscription traps:- Making it easy to sign up and difficult to cancel the subscription later, due to the hiding of the cancellation option or because of the need to follow more complex steps.

• Interface Interference:- Making it difficult to take some actions like deleting an account, canceling a subscription, etc.

• Bait and Switch:- Activities like advertising one product and delivering another product of lower quality.

• Hidden Cost:- Hiding additional costs of their purchases from consumers until they reach the final step of payment.

• Misdirection:- Attract user’s focus to expensive options by hiding cheaper ones.

• Disguised Ads:- Advertisements look like some other content like news or articles until they are opened.

• Drip Pricing:- Disclosing only a part of the product’s price by excluding the full price because the price including the tax discourages the consumers from purchasing it

• Shaming Method:- Some websites use words of shame or guilt to make users do the desired actions.

• Appearance of random additional items in our basket after purchase.

• Pop-up interruptions.

How Dark Patterns affect the users

Dark Patterns make the users more vulnerable to financial and data exploitation by MNCs mainly due to the leakages of private data and information. It often confuses the users at many stages and places many obstacles before them which force them to stay away from their desired actions and encourage them to act according to some other’s will. It makes some simple activities consume more time, forces users to sign up or purchase unwanted services or products, forces them to pay more money, etc. All these will prevent the users from getting a good internet experience.

Legal Position

In most countries, there are no particular laws regarding the Dark Patterns. In 2022 a major debate occurred in this regard when Google and Facebook faced repercussions from the European Union for making it difficult for users to reject cookies by using Dark Patterns. In March 2021, California amended the California Consumer Privacy Act to restrict Dark Patterns from interfering in matters regarding the privacy of consumers. The UK also made changes in their Data Protection Act, 2018, to restrict companies from using some kinds of Dark Patterns. All these were some of the constructive steps taken by the different countries in this regard.

Situation in India

In India, Section 2(9)(v) of the Consumer Protection Act, 2019 provides some safeguards against this practice. There is a National Consumer Helpline to collect information on the Dark Patterns. There is also the Advertising Standards Council of India (ASCI) established in 1985 to address issues like misleading, indecent, offensive, harmful, and dishonest ads.

Way Forward

The issue of Dark Patterns is a relatively recent development, and it's essential to take into account the problems it has already caused and the hurdles it will generate in the future. Governments throughout the world are now seriously looking into it. As a fast-developing country with the huge advantage with a capacity of human resources and vast technological infrastructures, India cannot ignore the issue of Dark Patterns. Even though it is not an easy step, India should take constructive steps to control and regulate such things to prevent possible damages in the future. India can adopt measures similar to those adopted in countries like the US and the UK like forming task forces and developing guidelines. It is also important to make the public aware of such things through education, government awareness programs, etc. which might help them to recognize and avoid such websites and apps. Forming new rules and laws and making the existing ones more enforceable can be also done in this regard.

Dark Patterns have been identified as a major challenge. Various monitoring plans have already started in different parts of the world against this with the use of AI tools and through laws and regulations. Businesses should focus on maintaining a positive culture with respect for their consumers and try to provide a good online experience.

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BY : SaiKrishnan JS

saikrishnanjayababu@gmail.com