I have to admit that when I first heard of the concept of ‘Dark Patterns’ sometime late last year, I did not think that it would get as ubiquitous as it has now, especially not so much that a department of the Indian government would actually recognise it and talk about it as much as it has so far. The department I speak of is the ‘Department of Consumer Affairs’, which published a press release last Friday evening “urging online platforms to refrain from adopting ‘dark patterns’ harming consumer interest”. There are a few things interesting about this particular press release and its timing, but before we get into that, it may make sense to go over what Dark Patterns are in the first place, or at least what they are supposed to be.
An Introduction to the Dark Arts
If you’ve ever closely looked at your favourite website or application that you use to purchase products or services, you may have noticed a particular flow to the menus, pages and options – a series of steps and clicks so to speak that gets you from one point to another; it’s a very important aspect of the overall experience, and entire job profiles and careers are dedicated to such ‘User Interface’ and ‘User Experience’, commonly referred to as UI and UX – from designs to colours to option buttons, the UI and UX is what allows you to interact and actually communicate with a business. Now the primary objective of a business, is, well, to make more money, and that money comes from you and I, lovingly referred to as ‘consumers’, who like to buy things. Can UI and UX be engineered to get consumers to purchase more than they intended to or should have? In 2010, a gentleman by the name of Dr. Harry Brignull coined the term Dark Patterns to refer to such tricks used by websites and apps to get people to do what they didn’t mean to, and while he now prefers the term ‘deceptive patterns’ instead, the phrase stuck and is now used as an identifier by multiple regulators worldwide.
What’s in a Name?
If you’re still wondering about what Dark Patterns are exactly, that’s a very fair doubt to have, because while the broad rationale behind it is somewhat clear, the types and kinds of Dark Patterns are hard to exhaustively list out, leading to multiple terms and phrases that we shall go over in a bit to provide more contextual examples – it’s interesting and quite entertaining, I promise. I say that the rationale is somewhat clear because many definitions of Dark Patterns usually link to what consumers want to do but don’t for a variety of usually UI and UX reasons, while India seems to be focusing on what is in consumers’ best interest, or what they should do but don’t due to Dark Patterns. This emphasis on consumer interest and also ‘unfair trade practices’ is most likely due to the way India’s Consumer Protection Act of 2019 is structured, with a very protectionist element thrown into the mix further widening the possibilities of what may be construed as Dark Patterns.
Time for Some Examples
Like I mentioned earlier, there’s no real exhaustive list of Dark Patterns, making categorisation even more difficult, but it’s easy to get an idea of the general concept with a few examples. We’ve all been there – you add a few items to your online shopping cart because a ‘sale’ is about to end, rushing to purchase your items but find out later that you ended up paying a lot more for additional items that somehow sneaked their way into your cart; the worst part, the price of the items you actually wanted isn’t actually that much higher once the so called sale has ended – was it even a sale at all or just a ploy to get you to buy something? A perfect example of buying something you wouldn’t have, especially at a particular price, if it wasn’t for the shopping interface somehow tricking you into giving it more money, money that you no longer have. From colours of buttons to confusing menus to plain and simple deception regarding how many items are left in stock and for how long at a price that isn’t actually what you will end up paying, businesses tend to get quite creative with Dark Patterns.
So, What Are Governments Doing About It?
Well, geographies such as the US, UK and EU have all in some way repurposed or formed laws to use against Dark Patterns, with more defensive measures in the pipeline especially to take into account additional technologies like AI that could both worsen or better the problem of businesses getting you to do things you don’t otherwise want to do, or in some cases like I mentioned earlier, should do.
The action that’s most in the news of late is that of the US’ Federal Trade Commission, or FTC, against Amazon and among other allegations against it, the biggest one being how easy it is to sign up for a ‘Prime’ subscription, but how immensely hard it is to cancel the same subscription; one allegation by the FTC states that it takes fifteen different steps just to cancel one’s Prime subscription, and that Amazon internally referred to the labyrinthine process as the ‘Iliad Flow’, named after Homer’s Greek Epic. By the way, it’s a common misconception that the Trojan Horse and the fall of Troy occurred in the Iliad – it actually took place between the Iliad and the Odyssey as a part of separate literature, but I won’t digress – just something I thought to mention since a bunch of people thought themselves smart to incorrectly reference the Iliad; well now you know.
Another recent action was against Epic Games and the payment mechanisms and processes in its very popular game Fortnite, which pushed consumers including children to easily purchase in-game items and penalised them when issues with such payments were raised – Epic settled for $245 million with the FTC, and that’s not including another similarly sized settlement that it needed to make for breaching privacy laws and norms – that’s close to half a billion of liability right there, all linked to Dark Patterns.
Well, India seems to have the infrastructure needed to go after Dark Patterns, with its Consumer Protection Act covering the broad genre of unfair trade practices and a few guidelines on misleading advertisements as well, with the Department of Consumer Affairs also publishing the recent press release we spoke about at the beginning urging online platforms to refrain from adopting Dark Patterns and harming consumer interest. The timeline is this – In November last year the Advertising Standards Council of India, or ASCI, a non-government entity released a consultation paper on Dark Patterns which was followed by a consultation process with certain stakeholders on the 13th of June this year, which included the presence of the Department of Consumer Affairs. In another press release on the same day, the Department highlighted the outcome of this consultation which was a commitment by the industry to explore ways to counter deceptive practices and develop a self-regulatory framework.
Two days later, on the 15th of June, the ASCI released its ‘Guidelines for Online Deceptive Design Patterns in Advertising’, covering four types of Dark Patterns – (1) Drip Pricing, where the actual price is revealed only at the final stage; (2) The Bait and Switch, where a consumer intends to buy something but gets baited into buying something else by tactics such as the actual item being out of stock or actually priced differently; (3) False Urgency, where a business implies that items or services are in limited supply; and (4) Disguised Ads, where content that seems to be editorial or organic actually ends up being paid or sponsored content and therefore an indirect advertisement. In force from the 1st of September this year, these guidelines aren’t really law since they aren’t framed by the government and could be argued to be fairly limited in their scope. The point is that organisations and businesses don’t really need to follow these guidelines because, well, that’s all they are – guidelines.
This background makes the Department of Consumer Affairs’ recent press release dated the 30th of June a lot more interesting, since the press release refers to letters being sent to major online platforms to refrain from incorporating Dark Patterns merely two weeks after a consultation process on it and the ASCI’s guidelines being released. The latest press release by the Indian government takes a more inclusive approach to what Dark Patterns are, providing a non-exhaustive list of ten examples of Dark Patterns such as – (1) False Urgency; (2) Basket Sneaking; (3) Subscription Traps; (4) Confirm Shaming; (5) Forced Action; (6) Nagging; (7) Interface Interference; (8) The Bait and Switch; (9) Hidden Costs; and (10) Disguised Ads. The press release also highlights another mechanism discussed during the consultation a few weeks prior – a National Consumer Helpline by dialling ‘1915’ or through WhatsApp on 9900001915.
What About Actual Law?
News sources suggest that the Department of Consumer Affairs may come out with specific norms regarding Dark Patterns, and while there’s no way to verify this or ascribe a timeline to it, it’s important to note that the FTC in the US has been as effective as it has because of the existing consumer, competition and privacy legislation infrastructure it has combined with a regulator in the form of the FTC that can take action based on all three interconnected regulatory spheres – India doesn’t even have an actual data protection law yet, and we’ve observed how linked Dark Patterns are to privacy and informed consent. Could the latest press release indicate that the Indian Department of Consumer Affairs will come out with actual laws with teeth that allow for enforcement against online platforms? To be honest, no one that isn’t the government knows, really.
So, What’s the Way Forward?
The importance of consumer awareness and knowledge on Dark Patterns cannot be understated – combined with a robust pushback by affected consumers by way of legal action and judicial precedent, it’s one way to ensure that consumers aren’t manipulated. Actual laws would of course help curtail big businesses with considerable clout, but in the meantime, I highly recommend checking out https://www.deceptive.design/, founded by Dr. Brignull and managed by his team of individuals that present the different types of Dark Patterns and deceptive practices as well as the laws and cases on it across the globe in a very simple and easy to read manner. In India, using the 1915 helpline is another option that may just yet be effective, but in the absence of a complimentary data protection law, there’s no doubt that India and its citizens stand to be one of the most vulnerable consumers worldwide.
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