Modi Government asks e-commerce firms to create a self-regulatory framework to end ‘dark patterns’

The Union Government has asked e-commerce companies to develop a self-regulatory framework to stop “dark patterns”. On June 13, the Department of Consumer Affairs (DoCA), along with the Advertising Standards Council of India (ASCI), took serious note of the ‘Dark Patterns’ and hosted an interactive consultation with stakeholders in Mumbai. The Secretary of the Department of Consumer Affairs, Rohit Kumar Singh, chaired the session.

This session 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, Ola etc. Retailers Association of India, NASSCOM, ONDC (Open Network for Digital Commerce), and law firm Khaitan & Co also attended this session.

Singh noted that the e-commerce sector contributes largely to dark patterns. In the next two months, e-commerce companies such as Amazon, Flipkart, Swiggy and Zomato will create a self-regulatory framework in collaboration with ASCI and law firms to curb these deceptive practices.

According to the Department of Consumer Affairs, Dark patterns encompass a wide range of manipulative practices that infringe on consumer rights. These deceptive practices have prompted DoCA and ASCI to take collaborative action against these actions.

Some of the Dark patterns are:

• “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 attack 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, 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 canceling 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”.

During the session, “self-regulatory measures were 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”.

In addressing the issue of such practices, Industry self-regulation plays an important role, “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”.

As per the DoCA, another possible solution is to equip users with tools and resources which will allow them to make informed choices online, “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”.

DoCA added 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”.

Secretary Rohit Kumar Singh said, “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”.

He further said, ‘ 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 express consent. Consumers shall be aware of what they are signing up for and also should be able to get out of the same.’

Singh stated that the Government is collaboratively working with all stakeholders and hopes that “Industry self-regulates itself and address this issue”. The Government will provide “All assistance to ASCI in examining this issue and build a comprehensive framework to protect consumers”.

In the meeting, the Joint Secretary of DoCA, Anupam Mishra, explained Dark Patterns and 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”.

While discussing the stakeholder consultation, the CEO and Secretary General, ASCI Manisha Kapoor, said online consumer safety is at the top of ASCI’s agenda. She said they have gone through advertising-related dark patterns, discussed them extensively, and released a ‘Dark Patterns – The New Threat to Consumer Protection’.

Kapoor was grateful for this meeting with DoCA, and she is looking forward “To forming a strong set of guidelines and rules that help weed out online deceptive patterns”.