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Can 'dark patterns' really be controlled?

The govt's efforts to protect consumers from manipulative advertising tactics are commendable, but ensuring compliance from e-commerce giants will be a daunting task

Bs_logoAdvertising, Ads, ASCI
Sandeep Goyal
5 min read Last Updated : Jun 23 2023 | 10:29 PM IST
The Department of Consumer Affairs (DoCA) and the Advertising Standards Council of India (ASCI) recently hosted a consultation session on dark patterns. The session was attended by the likes of Google, Meta, Amazon, Flipkart, Zomato, Swiggy, Ola, Uber and other key stakeholders of the e-commerce world. The stakeholders reportedly agreed to create a self-regulatory framework to address the challenges posed by “dark patterns”. The participants discussed the various types of dark patterns, how they can be identified, their impact on customers, and the steps required to deal with them.

According to the ASCI, 29 per cent of advertisement complaints processed by it during 2021-22 were related to disguised dark pattern ads promoted by influencers. Sectors such as crypto, fashion, e-commerce, personal care, food and beverage, and finance were found to promote dark patterns to lure customers.

What exactly are dark patterns? A dark pattern is an attempt by a user interface to trick users into making choices that are detrimental to their interests, such as buying a more expensive product or paying more than what was initially disclosed, sharing data, or making choices based on false or paid-for reviews. Why does it matter, one may ask? The DoCA would have us believe that dark patterns impede a customer’s right to be well-informed and constitute unfair practices that are prohibited under the Consumer Protection Act, 2019. They make customers suspicious, watchful and overly vigilant of the advertising content they consume, and of their general experience when browsing an e-commerce site. Given the problems caused by dark patterns, self-regulation is a necessary step to address this issue.

Some major types of dark patterns identified by the DoCA are:

Urgency: This tactic creates a sense of urgency or scarcity to pressure consumers into making a purchase or taking an action.

Basket sneaking: Websites or apps use dark patterns to add additional products or services to the shopping cart without user consent.

Confirm shaming: It involves guilt as a way to make consumers adhere. It criticises or attacks consumers for not conforming to a particular belief or viewpoint.

Forced action: This involves forcing consumers into taking an action they may not want to take, such as signing up for a service in order to access content.

Nagging: It refers to persistent, repetitive and annoyingly constant criticism, complaints, and requests for action.

Subscription traps: This tactic makes it easy for consumers to sign up for a service but difficult for them to cancel it, often by hiding the cancellation option or requiring multiple steps.

Interface interference: This involves making it difficult for consumers to take certain actions, such as cancelling a subscription or deleting an account.

Bait and switch: It is about advertising one product or service but delivering another, often of lower quality.

Hidden costs: This tactic involves hiding additional costs from consumers until they are already committed to making a purchase.

Disguised ads: These are advertisements that are designed to look like other types of content, such as news articles or user-generated content.

The moot question is whether consultations and proposed self-regulation can actually help control all these unfair trade practices? More so, when almost all the participants in the interactions with the DoCA, without exception, employ an army of “experts”—  both in-house and external digital/media resources — armed with “dark” technology tools, bots, data miners, data manipulators and more to capture and knowingly deceive the unsuspecting customer on the net.  The term “dark patterns” entered the English language in 2010 when Harry Brignull, a user experience researcher in the UK, coined it to describe deceptive practices used to manipulate a company’s customers. After much research on the subject, Mr Brignull concluded that the menace of dark patterns can be best contained if companies ensure their sign-up process provides clear, up-front information, obtains informed consent from consumers, and makes cancellation easy. This of course is easier said than done. Methinks the DoCA needs to put out specific guidelines and not just leave it all to the goodwill of the e-commerce giants.

Outlaw pre-ticked checkboxes: They're the checkboxes already checked for you —the assumption being that you’ll leave them without bothering to uncheck them. But often, these boxes are for things like opting into email newsletters or agreeing to receive marketing materials.

Delete misleading buttons: Misleading happens when a button says one thing but does another. A classic example is a “Cancel” button that doesn’t actually cancel your subscription or a “No Thanks” button that signs you up for something anyway.

Disable disabled links: We all know how exasperating it is to click on a link to close out a popup only to find it doesn’t do anything at all. Thus, you’d have to either do what the popup asks you or close your browser tab altogether.

The DoCA is on to a good thing. But getting the e-commerce guys to comply is going to be a helluva task.

The writer is managing director of Rediffusion.

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