Dark Patterns: Explained, pointwise

Introduction

Recently, The Ministry of Consumer Affairs, Food and Public Distribution has asked e-commerce companies to not use dark patterns on their platforms. Amid a rise in online shopping and an increase in the number of internet users, which is expected to touch 900 million by 2025, the dark pattern has caught the attention of the government. The digital space has become an integral part of the consumer’s life, significantly influencing how they consume information, goods and services. With e-commerce and social commerce growing at very high-speed online consumer safety has become important.   

What are dark patterns? 

Harry Brignull coined the term ‘dark pattern’ in 2010 to describe deceptive strategies used by websites or apps to deceive users.  

Dark patterns are also called deceptive patterns. These patterns are used for intentionally manipulating or misleading users to make certain choices or perform specific actions that may not be in their best interest. 

These unethical strategies are designed to exploit certain cognitive and behavioral biases to persuade users into purchasing goods and services they would typically not pay for.  

They downgrade the user experience to benefit the company implementing it. 

What are the different types of dark patterns identified by Consumer Affairs Ministry? 

The Consumer Affairs Ministry has identified nine types of dark patterns. 

False 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. 

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. 

Confirm Shaming: It involves guilt as a way to make consumers obey. 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 to access content. 

Nagging: It refers to persistent, repetitive and annoyingly constant criticism, complaints, requests for action. 

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. 

What are some examples of companies using dark patterns? 

Instagram allows users to deactivate their account through the app, but they must visit the website if they want to delete the account. 

Many websites and apps trick their users into allowing them to track their location or gather their data. For example, Instagram uses terms like ‘activity’ and ‘personalised’ instead of ‘tracking’ and ‘targeting’. 

Certain dating apps require the user to type the word ‘delete’ if they want to delete their account permanently. The pop-up showing ‘yes’ and ‘no’ options has been removed. In short, they have made it difficult to delete accounts by the user. 

Why should dark patterns be cause for concern? 

Harms to consumer autonomy: Dark patterns compromise consumers’ personal autonomy because they lead consumers to make choices they may not otherwise have made. Dark patterns often provide the illusion of control rather than actual control to consumer. 

Financial loss: Dark patterns such as basket sneaking, hidden costs, drip pricing or scarcity cues are aimed at getting consumers to buy something that they may not have needed. It leads to spending more than users may have otherwise intended to spend.  

Privacy harms: Privacy-intrusive dark patterns like nagging and confirm shaming force consumers into accepting privacy-intrusive settings through repetitive requests and criticism for not conforming. Consequently, individuals may unintentionally disclose more personal data than intended, potentially exposing themselves to additional risks. 

Psychological harm and time loss: The dark patterns cause psychological harm like emotional distress, such as frustration, feelings of shame and being tricked. The cognitive burden of unnecessarily spending energy or attention leads to time loss. Frustration and cognitive burden might result from repeatedly prompting the consumer to agree to certain settings (nagging). 

Weaker or distorted competition: Firms employing dark patterns may obtain a competitive advantage over firms that do not employ dark patterns, without offering better quality goods or services. For example, they may be able to get more sales (through hidden costs), personal data (through privacy-intrusive defaults) or attention time (through addictive practices).  

Trust erosion: Much of consumers’ behaviour towards online businesses is based on trust. Dark patterns may instill a sense of distrust in online businesses that employ them. Over time, this erosion of trust may lead consumers to lose faith in markets.  

What are the challenges in regulating dark patterns? 

Presently, there are no specific regulations in place in most nations against dark patterns. Consumer protection laws and data protection laws are used to regulate dark patterns in various jurisdictions.  

But the application of these laws is difficult in the absence of a body of case law (Dark patterns are a relatively recent phenomenon). The enforcement of these laws thus far has focused on a limited number of commonly recognised dark patterns. This indicates potential gaps in existing laws, available evidence, or enforcement capabilities. 

Notably, certain dark patterns that lack clear deception may not fall within the scope of current general prohibitions on deceptive commercial practices. 

Determining the legality of dark patterns can be a complex issue since it can be challenging to differentiate between manipulation and fraudulent intent (which is illegal). The question therefore remains over when a dark pattern will cross the threshold from controversial marketing technique to illegal practice. 

What are the global actions taken against dark patterns? 

Recently, regulators in jurisdictions such as the European Union, USA and UK have acted against dark patterns.  

The Competition and Markets Authority (CMA) of the U.K. has listed different pressure-selling techniques that it believes violate consumer protection laws and for which actions will be taken. 

In 2022, the European Data Protection Board released guidelines that gave designers and users of social media platforms practical guidance on how to spot and avoid dark patterns that are in violation of General Data Protection Regulation (GDPR) laws. 

In 2021, California passed amendments to the California Consumer Privacy Act, banning dark patterns that made it difficult for consumers to exercise legal rights, like opting out of the sale of their data. 

 In 2019, the UK issued a set of guidelines which prohibited companies from using dark patterns which influence underage users to have low privacy settings. These guidelines were later made enforceable under its Data Protection Act, 2018. 

How do India is addressing dark patterns? 

The Department of Consumer Affairs have written to major Indian online marketplaces warning them against engaging in unfair trade practice by implementing dark patterns in their user interfaces. Earlier, it held consultations with stakeholders on this issue. 

The government’s position is that 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. 

The department has started classifying complaints received on the National Consumer Helpline to compile information on dark patterns, which can be used by the Central Consumer Protection Authority to initiate action under the Consumer Protection Act, 2019. 

The government has also set up a task force to prepare guidelines to protect consumers against dark patterns. 

The Advertising Standards Council of India (ASCI), an industry body, has come up with guidelines against the use of dark patterns.  

What should be done? 

Empowering users: Users must be educated on cognitive biases and the various methods utilized to influence choices. This will enhance their ability to avoid being deceived. They should also be equipped with tools and resources that allow them to make informed choices. 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. Users should also be encouraged to report cases of dark patterns they encounter, and the platforms should establish clear channels for users to provide feedback and report manipulative practices. 

Industry self-regulation: 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. 

Robust legal mechanism: The government should set up strong legal mechanisms to specifically address dark patterns. New rules aimed against deceptive design practices should be introduced along with updated consumer protection laws and data protection legislation. 

Sources: Indian Express, The Hindu, PIB (Press release 1 and Press release 2), OECD