Call for Inputs: Draft Guidelines for Prevention and Regulation of Dark Patterns

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Call for Inputs: Draft Guidelines for Prevention and Regulation of Dark Patterns

Garima Prakash

@GarimaP

September 8, 2023

Public Policy

165

On September 6, 2023, the Department of Consumer Affairs released Draft Guidelines for Prevention and Regulation of Dark Patterns (draft Guidelines). This is based on the recommednations of the task force, set-up by the Department of Consumer Affairs, wherein nasscom had given inputs.

The draft Guidelines will apply to all platforms, advertisers and sellers. These terms have the same meaning as under the e-Commerce (Consumer Protection) Rules 2020 and the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. For reference, platform means an online interface in the form of any software including a website or a part thereof and applications including mobile applications.

The draft Guidelines prohibit any person, including any platform, from engaging in any dark pattern. Any person, including any platform, shall be considered to be engaging in a dark pattern if it engages in any specified practices.

Specified practices are proposed under the draft Guidelines as follows:

“False Urgency” means falsely stating or implying the sense of urgency or scarcity so as to mislead a user into making an immediate purchase or take an immediate action, which may lead to a purchase; including:
1. Showing false popularity of a product or service to manipulate user decision;
2. Stating that quantities of a particular product or service are more limited than they actually are.

“Basket sneaking” means inclusion of additional items such as products, services, payments to charity/donation at the time of checkout from a platform, without the consent of the user, such that the total amount payable by the user is more than the amount payable for the product(s) and/or service(s) chosen by the user.

Provided that the addition of free samples or providing complimentary services or addition of necessary fees disclosed at the time of purchase, shall not be considered basket sneaking.

Explanation- The term “necessary fees” means, the fees which is necessary to fulfill the completion of the order such as delivery charges, gift wrapping, additional taxes on the product charged by the government or any other charges which are explicitly disclosed to the consumer at the time of purchase.

“Confirm shaming” means using a phrase, video, audio or any other means to create a sense of fear or shame or ridicule or guilt in the mind of the user, so as to nudge the user to act in a certain way that results in the user purchasing a product or service from the platform or continuing a subscription of a service.

“Forced action” shall mean forcing a user into taking an action that would require the user to buy any additional good(s) or subscribe or sign up for an unrelated service, in order to buy or subscribe to the product/service originally intended by the user.

“Subscription trap” means the process-
1. of making cancellation of a paid subscription impossible or a complex and lengthy process; or
2. hiding the cancellation option for a subscription; or
3. forcing a user to provide payment details and/or authorization for auto debits for availing a free subscription; or
4. making the instructions related to cancellation of subscription ambiguous, latent, confusing, cumbersome.

“Interface interference” means a design element that manipulates the user interface in ways that (a) highlights certain specific information; and (b) obscures other relevant information relative to the other information; to misdirect a user from taking an action desired by her.

“Bait and switch” means the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.

“Drip pricing” means a practice whereby-
1. elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; or
2. revealing the price post-confirmation of purchase, i.e. charging an amount higher than the amount disclosed at the time of checkout; or
3. a product or service is advertised as free without appropriate disclosure of the fact that the continuation of use requires in-app purchase; or
4. a user is prevented from availing a service which is already paid for unless something additional is purchased.

Explanation-: A marketplace e-commerce entity shall not be liable for price fluctuations to the extent attributable to prices changes by third party sellers or due to other factors beyond their control.

“Disguised advertisement” means a practice of posing, masking advertisements as other types of content such as user generated content or new articles or false advertisements.

Explanation:

1. For the purposes of this clause, the expression “disguised advertisement” also includes misleading advertisement as provided under section 2 (1)(28) of the CP Act 2019 and the “Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022” shall also be applicable to it.
2. In relation to content posted by a seller or an advertiser on a platform, the responsibility of making the disclosure that such content is an advertisement shall be on such seller or advertiser.

“Nagging” shall mean a dark pattern due to which users face an overload of requests, information, options, or interruptions; unrelated to the intended purchase of goods or services, which disrupts the intended transaction.

Illustrations have been added to each specified dark pattern, to bring more clarity on the meaning and enable better compliance with the draft Guidelines.

To share your feedback/suggestions on the draft Guidelines, write to garima@nasscom.in with a copy to policy@nasscom.in, latest by September 28, 2023.

dark patterns consumer protection e-commerce online platforms

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Garima Prakash

Manager, Public Policy and Government Affairs

Reach out to me for all things policy about e-commerce, international trade, export controls, start-ups and fintech

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