Department of Consumer Affairs and ASCI share concerns on proliferation of dark patterns in advertising

Self-regulatory measures were discussed during the session for multiple categories, including online shopping, e-ticketing, restaurant and travel to counter dark patterns.

Department of Consumer Affairs (DoCA) along with the Advertising Standards Council of India (ASCI) hosted an interactive consultation with stakeholders on "Dark Patterns" in Mumbai on June 13, 2023. The session was chaired by Shri Rohit Kumar Singh, Secretary, Department of Consumer Affairs.

Dark patterns encompass a wide range of manipulative practices such as drip pricing, disguised advertising, bait and click, choice manipulation, false urgency, and privacy concerns. The increasing prevalence of these deceptive practices that infringe on consumer rights prompted this collaborative effort by DoCA and ASCI. Some major types of Dark Patterns:

• Urgency: This tactic creates a sense of urgency or scarcity to pressure consumers into making a purchase or taking an action.
• Basket Sneaking: Websites or apps use dark patterns to add additional products or services to the shopping cart without user consent.
• Confirm Shaming: It involves guilt as a way to make consumers adhere. It criticizes or attacks consumers for not conforming to a particular belief or viewpoint.
• Forced Action: This involves forcing consumers into taking an action they may not want to take, such as signing up for a service in order to access content.
• Nagging: It refers to persistent, repetitive and annoyingly constant criticism, complaints, and requests for action. 
• Subscription Traps: This tactic makes it easy for consumers to sign up for a service but difficult for them to cancel it, often by hiding the cancellation option or requiring multiple steps.
• Interface Interference: This tactic involves making it difficult for consumers to take certain actions, such as cancelling a subscription or deleting an account.
• Bait and Switch: This involves advertising one product or service but delivering another, often of lower quality.
• Hidden Costs: This tactic involves hiding additional costs from consumers until they are already committed to making a purchase.
• Disguised Ads: Disguised ads are advertisements that are designed to look like other types of content, such as news articles or user-generated content.

Shri Rohit Kumar Singh, Secretary, Department of Consumer Affairs, while addressing the stakeholders stated, "Protection of Consumers is a paramount concern to DoCA. Deceptive patterns that manipulate consumer choice and impede their right to be well-informed constitute unfair practices that are prohibited under the Consumer Protection Act 2019. We are committed to work collaboratively with all stakeholders as we navigate through this evolving issue, and we hope that the industry self-regulates itself and address this issue. We look forward to providing all assistance to ASCI in examining this issue and build a comprehensive framework to protect consumers."

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He further stated, "DoCA is extremely concerned over the proliferation of dark patterns on eCommerce and other modes. Consumers must not be forced or directed towards unintended consequences without their express consent and consent by deceit is not an express consent. Consumers shall be aware of what they are signing up for and also should be able to get out of the same."

He highlighted that the online space in India has experienced impressive growth in recent years, with the number of internet connections reaching 830 million in 2021. Moreover, India's consumer digital economy is anticipated to hit the US$1 trillion mark by 2030, growing from US$537.5 billion in 2020. This is attributed to the strong adoption of online services like eCommerce and edtech in the country.

He also stated that the digital space has become an integral part of the consumer's life, significantly influencing how they consume information, goods and services. Certain aspects of UI/UX design and online choice architecture guide consumer choices. However, when manipulated to the detriment of consumers, they become a cause of concern.

Shri Anupam Mishra, Joint Secretary, Department of Consumer Affairs presented a detailed presentation on Dark Patterns. He further stated that the prevalence of dark patterns in the online space poses a significant threat to consumers. They are designed to subvert or impair user autonomy, decision-making or choice. These tactics can lead to unintended purchases, addiction and overuse and privacy violations.

Talking about the stakeholder consultation, Manisha Kapoor, CEO and Secretary General, ASCI, said: “With e-commerce and social commerce growing at breakneck speed online consumer safety is at the top of ASCI’s agenda. Deceptive patterns in online advertising mislead consumers, ruin their online experience, and erode trust in brands and advertising. We have already gone through some extensive consultations on advertising-related dark patterns and have released a comprehensive discussion paper titled ‘Dark Patterns – The New Threat to Consumer Protection’. Today’s consultation looked at some dark patterns beyond the scope of advertising, but that compromise consumer interest, nonetheless. We are grateful that DoCA is putting its weight behind this important issue and together we look forward to forming a strong set of guidelines and rules that help weed out online deceptive patterns.”

In light of these challenges, self-regulatory measures have been discussed for multiple categories, including but not limited to, online shopping, e-ticketing, restaurant and travel to counter dark patterns. These include prohibiting specific kinds of dark patterns, fostering consumer-friendly digital choice architecture and empowering regulators.

Industry self-regulation can also play a pivotal role in addressing this issue. Online platforms can establish ethical design guidelines that discourage the use of dark patterns. Encouraging responsible design practices and conducting independent audits can help identify and rectify dark pattern issues.

Equipping users with tools and resources that allow them to make informed choices online is another potential solution. This could include browser extensions, apps or plugins that detect and block dark patterns or platforms providing clearer and more accessible settings and privacy options.

The stakeholder consultation presented an opportunity for both the Government and Industry to initiate a public dialogue to raise awareness about the dark patterns being adopted. A lot of suggestions were presented which include that users should be encouraged to report instances of dark patterns they encounter, and platforms should establish clear channels for users to provide feedback and report manipulative practices. In addition to promoting awareness about dark patterns among consumers, small and medium-scale MSME merchants must also be made aware as they account for a huge portion of online sellers.

The stakeholder consultation was attended by a lot of industry stakeholders and top executives from nearly three dozen platforms and industry heads including Flipkart, Zomato, Amazon, Meta, Google, MakeMyTrip, Yatra, Snapdeal, Uber, Ola, Big Basket, Meesho, Pharmeasy, Tata 1mg and Shiprocket. It was also attended by the Retailers Association of India, NASSCOM, ONDC and Khaitan & Co.

The discussion concluded with the commitment to continue to explore ways to counter deceptive online practices and protect consumers' interests. It has been agreed that the industry along with all stakeholders must develop a self-regulatory framework and all sectors shall be represented. It was a step forward in addressing the challenges posed by dark patterns.