Government proposed a self-regulatory approach to tackle dark patterns on online interfaces

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Government proposed a self-regulatory approach to tackle dark patterns on online interfaces

Garima Prakash

@GarimaP

June 30, 2023

Public Policy

162

On June 13, 2023, the Department of Consumer Affairs along with Advertising Standards Council of India (ASCI) organised a stakeholder consultation on dark patterns. The nature of such patterns, their types along with examples were discussed.

Key takeaways from the discussion included:

· Dark patterns involve designing the online user interfaces in a manner which impairs the ability of a consumer to make free and fair choices.

· Some examples of dark patterns include:

o Basket sneaking – adding additional products or service to the shopping cart without the consent/knowledge of the shopper.

o False urgency – creating a sense of urgency or scarcity to pressure consumers into making a purchase or taking action.

o Forced action – forcing consumers into taking an action they many not want to take, such as signing up for a service in order to access content.

o Subscription traps – making it easy for consumers to sign-up for a subscription, but difficult to cancel it, often by hiding the cancellation option.

· The Department of Consumer Affairs discussed their proposed approach towards tackling dark patterns to ensure consumer protection, under the following 4 pillars:

o Self-regulation: Encourage industry to self-regulate dark patterns by, for example, adopting guidelines on ethical design practices, conducting independent audits to identify dark patterns and taking actions against findings.

o Consumer awareness: Introduce tools for users to make informed choices, spread awareness on various forms of dark patterns. Nasscom emphasised on the need for increasing consumer awareness, as ultimately only when a consumer is aware can he/she identify and avoid getting trapped into dark patterns.

o Reporting: Encourage consumer to report dark patterns. Nasscom highlighted the practice in UK, under the ‘rip-off-tip-off’ campaign, to encourage consumers to report online dark patterns.

o Enforcement action: by Central Consumer Protection Authority, against unfair trade practices (which can include dark patterns) under the Consumer Protection Act.

· International best practices were discussed, to showcase enforcement actions related to dark patterns followed by online interfaces which were found to be detrimental to consumers:

o In United States, the Federal Trade Commission took action against some online interfaces that engaged in enrolling consumers onto subscription programmes without obtaining their consent.

o In Norway, pursuant to an investigation by the Norwegian Consumer Council, an online platform has committed to bringing its subscription cancellation practices in line with EU consumer rules.

o In United Kingdom, the Competition and Markets Authority took action against online interfaces that indulged in misleading reference pricing and misleading countdown clocks for flash sale.

· Industry’s feedback on the approach and efforts towards curbing dark patterns included:

o an overall support to take actions to prevent dark patterns on online interfaces, and strongly supported the idea of taking a self-regulatory approach. Industry indicated taking the lead on formulating a self-regulatory code on dark patterns.

o Dark patterns can occur on not just e-commerce platforms, but all kinds of online interfaces, including mobile applications, webpages of any kind etc. Therefore, for effectively tackling the problem, this issue should be examined from a broader lens.

o Consideration should be placed on the different types of entities that may be involved in a dark pattern, and assigning responsibility accordingly. For example, dark patterns on a user interface could be by displaying a click-bait ad. Here, the ad publisher must be looped-in on the responsibility for such ad.

If this topic is of interest to you, or you would like to share your inputs on industry’s best practice to avoid dark patterns or suggestions on the approach that should be taken by the government to tackle these practices, please get in touch with me. For more information, kindly write to us at garima@nasscom.in and policy@nasscom.in.

dark patterns e-commerce consumer protection

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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