Namah Chawla

Understanding ‘dark patterns’ - the latest threat to consumer protection

The Advertising Standards Council of India has set up a task force, comprising its members and industry experts, to tackle this issue.

One may have come across a situation, while surfing the Internet, when even after clicking on the ‘X’ icon, which signifies ‘close’, one is redirected to another website or is unable to close the running window. There could also be a situation wherein prices rise significantly once the user proceeds with the payment option. These are just a few examples of ‘dark patterns’.

What are dark patterns?

A dark pattern is a user interface that has been crafted to trick or manipulate one into making choices that are detrimental to their interest. These include buying a more expensive product, paying more than what was initially disclosed, sharing data or making choices based on false or paid-for reviews, and so on. However, in terms of advertising, it is just another category of ads that can be classified as misleading.

Kinds of dark patterns

Many kinds of dark patterns exist in the online space, and many cause harm to the consumers. Here are some common dark patterns.

1. Forced continuity: If one has signed up for a streaming service recently, then they must have run into this dark pattern, where your credit card is automatically charged as soon as a free trial comes to an end.

2. Bait and switch: As the name suggests, this occurs when a user takes an action expecting one outcome but, instead, something else happens. 

3. Hidden costs: This happens when, during the final step of an e-commerce check-out process, additional fees/costs (like delivery and service charges) are added to your order. 

4. Roach motel: Named after the product that attracts roaches in, but makes it impossible for them to get out. A roach motel dark pattern lets users do something easily, like sign up for an account, but makes it difficult to get out of the situation.

5. Disguised ads: These are likely to appear on a website or an app, even if you don’t know what it was. And, that’s the whole point! Disguised ads look like the content on the rest of the site, so the users are more likely to click on them.

6. Privacy zuckering: In its early days, Facebook was known for causing users to inadvertently share more personal information with their network than they intended to. This is why this dark pattern is named after Mark Zuckerberg, CEO of Facebook.

Why dark patterns need consumers’ attention?

Those working in the area of consumer protection are increasingly concerned about the issue of dark patterns that mainly pertain to advertising or unfair practices.

Indian consumers aren’t immune to dark patterns. As online commerce grows, this is an increasing area of consumer vulnerability. A few steps have already been taken in this regard in the recent months.

What are the regulations implemented globally?

The European Data Protection Board (EDPB) has issued guidelines on dark patterns on social media platform interfaces. Some problem areas have been identified, such as overwhelming consumers with requests to share more data, designing the interface in a way that users fail to consider data protection aspects of a decision, or hiding information or privacy controls.

A recent Federal Trade Commission (FTC) report shows a rise in sophisticated dark patterns designed to trick and trap consumers. The dark pattern tactics detailed in the report include disguising ads to look like independent content, making it difficult for consumers to cancel subscriptions or charges, and tricking them into sharing their data. 

The report highlight FTC’s efforts to combat the use of dark patterns in the marketplace. It reiterates the agency’s commitment to taking action against tactics designed to trick the consumers.

What is ASCI and other regulatory bodies in India doing to address dark patterns?

Although the term ‘dark patterns’ has only recently made its way into common usage, the Advertising Standards Council of India (ASCI) has been addressing such issues through its existing code on misleading ads.

Since not all dark patterns are related to advertising, there are some aspects that the ASCI will look into. However, there are other stakeholders, especially the government, and the ASCI hopes that by bringing the dark patterns to light, the government will take up these cases as well. The ASCI also aims to sensitise other industry bodies to deal with designers who create these UI/UX that lead to dark patterns.

Speaking about the challenges of curbing these dark patterns, Manisha Kapoor, CEO and secretary general, ASCI, says that enough awareness needs to be created among those who are exposed to these ‘tricky’ dark patterns. 

There is no body or entity that can monitor the entire Internet. Hence, Kapoor feels that prioritising what to monitor, when it comes to dark patterns, is also a challenge.

To better understand the issue of dark patterns and how the ASCI may safeguard the consumers against them, a 12-member task force, comprising different stakeholders, was set up. The composition of the task force - stakeholders, industry experts from different tech platforms, as well as legal, civil society and domain experts - reflected different perspectives and challenges.

The task force examined key issues related to dark patterns to understand which of these practices potentially violate the ASCI code, which states: “Advertisements shall not be framed so as to abuse the trust of consumers, or exploit their lack of experience or knowledge.”

Most violative brand categories

29% of ads processed by the ASCI in 2021-22 pertained to disguised ads by influencers, a kind of dark pattern. In 2021, the ASCI asked social media influencers to disclose promotions, in order to address the issue of disguised ads. As the lines between content and ads get blurred, the ability of the consumer to make an informed decision, comes under question.

Some of the most violative categories include crypto, personal care, e-commerce, fashion, F&B, services, mobile apps and finance. The ASCI code applies across media, including online advertising (companies’ own websites, pages and handles).

Source:  ASCI's discussion paper titled 'Shining a light on dark patterns'

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