What's Brewing

On 30th November 2023, Central Consumer Protection Authority [CCPA] under Ministry of Consumer Affairs, Food and Public Distribution, notified a set of Guidelines under Consumer Protection Act of 2019 [Act], to protect consumers against risks from ‘dark patterns’ prevalent in food aggregator apps and websites, after duly interacting with all stakeholders including the public and based on recommendations of the Task Force constituted by Department of Consumer Affairs [DoCA] for the purpose.

The Guidelines notified are as follows: 

1. Definition: ‘Dark Patterns’ are defined as: Strategies of misleading consumers into taking actions they did not originally intend to, through deceptive tactics like creating false urgency, concealing hidden costs, etc., using User Interface [UI] / User Experience [UX], with the ultimate objective of making monetary benefits for the platform/App owners.
2. Applicability: These guidelines are applicable to all types of online platforms/Apps, models of e-commerce and all goods and services sold through any electronic network, website or portal. 
3. Prohibition: Use of ‘dark patterns’ by any person or platform is prohibited.
4. Dark Patterns: Annexure to the guidelines lists out the various tactics or actions on the part of sellers that shall be construed as ‘dark patterns’.

The following are the identified ‘dark patterns’:

1. False Urgency: (a) falsely stating or implying a sense of urgency to coerce user to make immediate purchase (b) displaying false popularity by showing false statistics (c) indicating false quantities of product to create a sense of scarcity.
   Example: “Only 2 rooms left. 30 others are viewing them now”.
2. Basket Sneaking: including ‘additional’ items like added products/services or donation amounts in the sale bill without consent of user, other than legitimate charges like packing, delivery or additional govt taxes that are explicitly disclosed upfront to user.
   Example: automatically adding travel insurance while buying an air or bus ticket.
3. Confirm Shaming: using a phrase, video or audio to create a sense of shame or fear in the user for not availing an additional product/service offered by seller.
   Example: An air ticket app uses the phrase ‘I choose the risk of remaining uninsured” when the user does not include insurance in his purchase.
4. Forced Action: forcing user to buy an additional product/service unrelated to the intended purchase.
   Example: forcing user to subscribe to a newsletter subject to which alone intended item is available.  
5. Subscription Trap: making the process of cancellation of a paid subscription complex, lengthy or even making the cancellation impossible.
   Example: hiding the ‘cancel subscription’ option; forcing user to provide payment details or authorisation of auto debits to avail a free subscription.
6. Interface Interference: interfering with user-seller interface or manipulating interface information such that user tends to act in a manner beneficial to seller.
   Example: Highlighting ‘yes’ button with bright colour or large size and trying to conceal ‘no’ button with dull colour or small size, in order to goad the user to press ‘yes’ button when he has to decide whether to proceed with purchase or not.
7. Bait and Switch: offering a particular outcome to the user based on his interface action but changing deceptively the outcome to benefit the seller.
   Example: bait/tempt the user by showing an inexpensive product/service and then deceptively switch/change it with an expensive product/service by displaying that the original product is no longer in stock or available.
8. Drip Pricing: not revealing all the elements of the final price upfront and revealing them only after user’s purchase confirmation, resulting in user having to pay a higher price than what he has accepted. Also, incomplete disclosure of facts pertaining to product/service price.
   Example: An App invites user to download a game for free. But after a week or so, the App demands a payment from the user to continue with the game. The fact that the free version of the game comes with a time limit has not been disclosed while downloading the App.
9. Disguised Advertisement: hiding or disguising advertisement of their products/services by seller by posting them under other categories of information such as reviews, news, etc. Note: Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 shall apply to such disguised advertising, besides Section 2 (1)(28) of Consumer Protection Act 2019.
   Example: App displays ‘news articles’ but when clicked, a product is advertised.
10. Nagging: burdening the user with repeated requests or options unrelated to the intended purchase, thus disrupting the intended transaction.
    Example: Platforms asking users to give their phone numbers for supposedly security purposes.
11. Trick Question: misleading user with tricky phrases into taking action different from intended one.
    Example: Giving options like “Not Now” or “Yes. I would like to receive updates” instead of a simple “Yes”, for the decision “Do you wish to opt out of receiving updates on our products forever?”.
12. Saas (Software As A Service) Billing: is the process of charging recurring fees from users for software like OTT programmes or Mobile Phone data, through subscription-based or usage-based plans. Users can be exploited by manipulating features in the software to benefit seller without user’s knowledge.
    Example: Converting free trial into paid service without prior notification to user; using shady credit card authorisation practices; charging user for services he did not opt for.
13. Rogue Malwares: ransomware or scareware to make user believe there is a virus in his computer and sell him a fake anti-virus that actually installs a malware, thus gaining wrongful access to user’s data.
    Example: tempting user with free content on a pirated website and embedding a malware when user accesses the website link.          

With today’s consumers relying overwhelmingly on online platforms for all their material needs, these CCPA guidelines assume a lot of significance for the protection of consumers.

For full text of the Guidelines:
https://consumeraffairs.nic.in/sites/default/files/The%20Guidelines%20for%20Prevention%20and%20Regulation%20of
20Dark%20Patterns%2C%202023.pdf