How well can govt's dark pattern rules curb customer manipulation online?

Some consumers say online booking, especially for travel and stay, can sometimes appear to be a creature that is alive and responding to the buyer’s eagerness or desperation. You might have experienced it yourself.

Like that time you were planning to go on a vacation with your family. You looked for tickets on a travel website and it showed a particular price. But, within minutes, the price increased.

That was the result of what is called “dark pattern” practices, which manipulate people into making a purchase they either did not intend to make or did not want to make it in the manner they ended up making. That is less likely to happen now.

The Central Consumer Protection Authority, the country’s top consumer watchdog, has notified the guidelines for “prevention and regulation” of dark patterns, having identified 13 practices (see Specified Dark Patterns), including misleading advertisements and unfair trade practices, and violations of consumer rights.

“With the guidelines in place, the aviation industry and online travel portals will find it increasingly difficult to continue using many of these ‘dark pattern’ practices,” says Salman Waris, managing partner at tech law firm TechLegis Advocates & Solicitors. “The pervasive issue of deceptive online practices in the aviation industry and online travel portals has come under increased scrutiny.”

He adds that about 10,000 complaints related to these practices had been lodged with the Ministry of Consumer Affairs through the National Consumers Helpline over the past eight to nine months.

The Guidelines for Prevention and Regulation of Dark Patterns, 2023, have already come into force and apply to all platforms offering goods or services in India, including advertisers and sellers. “No person, including any platform, shall engage in any dark pattern practice,” the norms say.

 

Significant shift

Sonam Chandwani, managing partner at law firm KS Legal & Associates, says the guidelines are poised to usher in a significant shift in how ecommerce operates and engages with consumers. “Primarily, these guidelines will enhance transparency and ethical practices, compelling platforms to abandon manipulative tactics like hidden fees, misleading urgency cues, or convoluted ‘unsubscribe’ processes,” she says.

This shift, Chandwani adds, will not only foster greater consumer trust but also necessitate an overhaul in marketing strategies. That will be a pivot from urgency and scarcity-based tactics to more value-driven and straightforward approaches. Adapting to the guidelines could also impose an initial financial and operational burden on errant platforms, such as redesigning websites and modifying user interfaces. “But the long-term benefits are substantial,” she says.

Some of those benefits would be improved customer loyalty, legal compliance, and an edge in a market increasingly sensitive to ethical considerations. As consumer awareness of data privacy grows, experts say these platforms must adopt more transparent data practices. They need to align with the public’s demand for greater control over personal information. 

“It was time to bring online booking, especially airlines and hotels, to book,” says K Narasimhan, advocate, Madras High Court. “The guidelines have a great impact, as they enable regulators to go after the 

erring players.”

In a survey by LocalCircles, which received more than 33,000 responses from consumers in 323 districts, seven in 10 users of online travel platforms said they had experienced dark patterns, such as hidden charges, false urgency, and price manipulation.

Offline issue

K Giri, director-general, Empower India, a think tank promoting corporate governance in the country, says the dark patterns guidelines have the potential to curb wrongdoing by many industries, such as online booking for travel and stay. But, he says the consumers may not get the benefits as the same patterns are prevalent offline, too, which is not regulated by these guidelines. 

“For consumers to get benefits from dark patterns guidelines, it should be extended to offline players as well, and the players need to be given time to make changes,” says Giri. 

As in the case of special sales online, many other businesses pressure consumers by stating that the supply is limited. “Only one left in stock,” is a familiar line that appears next to items, as is “last two rooms available at this price”.

Ecommerce and online travel industry executives who, understandably, wish to remain anonymous, welcome the government’s guidelines. 

But, they say some key clauses in the guidelines are broad and ambiguous.

Another executive says the ecommerce industry is just 6 per cent of the overall retail industry in the country and there is fear that such guidelines could be misused to crack down on companies that have legitimate businesses.

That will be a dark pattern  on its own.

SPECIFIED DARK PATTERNS
 

False Urgency
 

Falsely implying a sense of urgency or scarcity to mislead a user into making an immediate purchase
 

Basket Sneaking

Inclusion of additional items such as products, services, payments to charity at the time of checkout without the consent of the user
 

Confirm Shaming

Using a phrase, video, audio or any other means to create a sense of fear, shame, ridicule, or guilt in the mind of the user to nudge them to act in a way that results in a purchase
 

Forced Action

Forcing a user into taking an action that would require the user to buy any additional goods, or subscribe to or sign up for an unrelated service, or share personal information to buy or subscribe to the product or service originally intended by the user
 

Subscription Trap

Making cancellation of a paid subscription impossible, complex, or lengthy; hiding the cancellation option; forcing a user to provide payment details or authorisation for auto debits; or making the instructions related to cancellation ambiguous, latent, confusing, and cumbersome
 

Interface Interference

A design element that manipulates the user interface in ways that highlight certain information and obscures others to misdirect a user
 

Bait and Switch

Advertising a particular outcome based on the user’s action but deceptively serving an alternative outcome
 

Drip Pricing

Not revealing elements of prices upfront, revealing them surreptitiously, revealing the price after confirmation of purchase, advertising a product or service as free without appropriate disclosure that the continuation of use requires in-app purchases, or preventing a user from availing a service already paid for unless something additional is purchased
 

Disguised Advertisement

Masking advertisements as other types of content, such as user-generated content or new articles or false advertisements that are designed to blend in with the rest of an interface
 

Nagging

A dark pattern practice due to which a user is disrupted and annoyed by repeated and persistent interactions, in the form of requests, information, options, or interruptions
 

Trick Question

Deliberate use of confusing or vague language, double negatives, or other similar tricks to misguide or misdirect a user
 

Saas Billing

Generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions
 

Rogue Malwares

Using a ransomware or scareware to mislead or trick users into believing there is a virus in their computer and to convince them to pay for a fake malware removal tool that actually installs malware on their computer
 

Source: The Central Consumer Protection Authority