Lighting the Dark Pattern for Consumer

The Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs (hereinafter referred to as ‘DoCA’) on June 30th, 2023. ‘DoCA’ by exercising their power under sub-clause (1) of sub-section (2) of section 18 of The Consumer Protection Act, 2019 proposed the Guidelines for Prevention and Regulation of Dark Pattern, 2023 (hereinafter referred to as (‘the Guidelines’). Dark Pattern is a term which defined under section 2(1)(e) of the Annexure- A of the ‘the Guidelines’ as unfair or manipulative way to influence the consumers through various ways to make them choose what they don’t want to do or not in their best interests. In this the seller/supplier uses UI/UX (user interface/user experience) to mislead the consumer.

Following are the 10 specified ways defined by ‘DoCA’:

1. False Urgency: In this the seller/supplier uses a way of stating the urgency which means giving consumer the less time or making them scared to take this as soon as possible to make a purchase. In this the seller/supplier use ways like to showcase the false popularity of the concerned product.

1. Basket Sneaking: In this the seller/supplier adds additional items such as products, services, like charity or donation at the time of checkout without the consent of consumer. In this the extra amount is added to the total of product price in the name of charity/donation.

It is to be noted that the additional service which can be complementary provided by the seller/supplier will not come under the Basket sneaking.

1. Confirm shaming: In this the seller/supplier used trick through phrases, video, audio to create a fear in the mind of consumer to make a purchase of the concerned purchase. In the seller/supplier tries to play with Psychology of the consumer to make him/her think that it will be bad or immoral to not make the purchase item.

For ex: A Bus service provider uses a trick at the time of booking a seat to give insurance to the passengers, they generally use a phrase “I will stay unsecured for the whole journey”.

1. Forced action: In this the seller/supplier tries to sell the unintended product/ service to the consumer by forcing them to make a purchase the additional unintended product before buying the intended product.

For ex: Forcing consumers to download a separate different app before downloading the original intended app.

1. Subscription trap: In this seller/supplier make attempt to set the procedure of cancellation of any subscription model a difficult one or confusing one for the consumer or hiding the cancellation option in a way that it will be difficult for the consumer to find it and it also tries to play with the consumer psychology to make them frustrated and make them choose not to cancel the subscription.

1. Interface interference: In this seller/supplier try to manipulate the consumer by highlighting the unrelated information and make less visible the intended information to misdirect the consumer from taking a desired intended action.

For ex: Design the option ‘No’ less visible to a pop-up asking if they want to purchase a concerned product.

1. Bait and switch: In this the consumer deceptively gets the unintended product even after selecting for the intended product.

For ex: Showing the consumer a product which is cheap but when the consumer is about to pay for the same, then the product is no longer available or instead offer a similar product for a higher price.

1. Drip pricing: In this the seller/supplier revealed the price post-purchase or product/service advertised as free without disclosure of all the material facts or in certain cases the consumer is prevented from availing the service for which the consumer has already paid.

1. Disguised advertisement: In this seller/supplier posing or making the false advertisement or misleading the consumer by faking the product in the advertisement. In this the responsibility of making all the material facts disclosed lies with the seller/supplier.
2. Nagging: In this the seller/supplier asks the same things multiple times or asking the same thing in an interrupted and annoying way.

For ex: Websites asking consumers to download the concerned application again and again.

These Dark Pattern shall apply to all the sellers, advertisers and on all the platforms which are offering the goods/ services to the consumer. The main objective of these guidelines is to protect the consumer’s rights and safeguard them from any dark practices by regulating and identifying the patten used by the seller/supplier.

Conclusion

These guidelines issued by the ‘DoCA’ in consultation with the Advertising Standards Council Protection ACT, 2019 for the protection of consumers. But these guidelines are yet to be finalized by the ‘DoCA’ and the ministry should impose the fine on the seller/supplier if they come under any of above discussed guidelines.

Disclaimer: The above article is based on the personal interpretation of the related orders and laws. The readers are expected to take expert opinions before relying upon the article. For more information, please contact us.