Picture this: You have run out of your daily essentials, you open a quick-delivery app, you add a few items in the shopping cart and you see a freebie automatically added without giving an option to not opt for it even if you don’t require such freebie.
A resident of Bengaluru faced a similar situation where 500 grams of tomatoes were automatically added to his Swiggy Instamart basket, that too without his will. Notably, the app’s interface did not have any option to remove the free tomatoes.
Getting a freebie could be a sweet shopping experience (who doesn’t like a freebie!); but a freebie without an option to opt-out could lead to frustration. Imagine a shopkeeper putting a product in your bag and not allowing you to remove it- the Bengaluru resident could be considered to be in the same situation, virtually.
Soon thereafter, the customer took to social media with the screenshot of his order, accusing Swiggy Instamart to be resorting to what he claims as ‘basket sneaking’.
Well, ‘basket sneaking’ is one of the 13 dark patterns which are prohibited under the law. This article aims to throw light on dark patterns, the regulatory landscape w.r.t. it in India and much more.
I. Dark Patterns- The Concept
The term ‘Dark Patterns’ refers to deceptive patterns/practices which are designed and deployed in the UI/UX ultimately to trick or mislead a user to perform an action he/she did not actually intend to do.
What is the ultimate effect? A dark pattern impairs customer control, his decision-making choice and amounts to misleading advertisement/unfair trade practice.
The Central Consumer Protection Authority (CCPA) notified the ‘Guidelines for Prevention and Regulation of Dark Patterns, 2023’ (“Guidelines”) under the Consumer Protection Act, 2019. These Guidelines are applicable to:
1. Platforms (systematically) offering goods/services in India (this includes foreign platforms).
2. Any person who designs, produces and publishes advertisements to promote the sale of their goods/products/services.
3. Service providers and sellers who import, sell, distribute or market a product/service for commercial purpose (including manufacturers who sell products).
Pertinently, these guidelines are likely not applicable to B2B operation model, reason being the applicability of Consumer Protection Act 2019 only to B2C model.
II. The Prohibition On Dark Patterns
There are 13 practices which are provided for in the Guidelines (subject to modification by the CCPA) and a person is considered engaging in a dark pattern practice by engagement in such practice.
1. False urgency– Creating a false scarcity thereby making a user take an action in haste.
2. Basket sneaking– Adding additional items (like products, payments to charity) without the consent of the user in order to increase the amount payable by him. Notably, this excludes inclusion of samples and complementary services and necessary fees.
3. Confirm shaming– Using tactics to make a user take decisions basis emotions of fear, ridicule, guilt, etc. which ultimately shall lead to commercial gain for the entity
4. Forced action– Making a user buy an additional product/subscribe to an additional service in order for him to purchase a product/subscribe to a service which he/she actually desired buying/subscribing.
5. Subscription trap– Refers to indirectly forcing a user to retain its subscription through various ways like (i) making the cancellation process complex, (ii) making complex the instructions to cancel the subscription, (iii) hiding subscription cancellation option.
6. Interface interference– Refers to misdirecting the users from performing their intended action by highlighting certain information or obscuring the relevant information. For instance, for making a user purchase a product/service, the option ‘Yes’ is made brighter and the option ‘No’ is kept in a light color.
7. Bait and switch– Refers to baiting the user with an outcome which is later switched with an alternative outcome. For instance, making the user perform all actions and go through all actions to buy a product and at one later stage indicating him that the product is not available.
8. Drip pricing– This refers to not presenting the users with upfront prince information about the product, say revealing the pricing secretly or stating that the product shall be made available for free without stating about the costs for such product’s continuous usage.
9. Disguised advertisement– Refers to making an advertisement appear as a user’s review, news article, false advertisement and blending them with the UI/UX with the view to trick the users ot click on such advertisement.
10. Nagging– This refers to annoying the users by continuous/repetitive requests, options, pop-ups, notifications with the ultimate aim of performing a transaction.
11. Trick question– Refers to the intentional usage of confusing language which would trick/confuse the users and make them take an undesired action. This includes the usage of double negative for confusing the users.
12. SaaS Billing– This refers to billing users on a recurrent basis in software as a service model (SaaS model) without any notification. Say, converting a free trial into an actual subscription without giving any notification to the user who opted for a free trial.
13. Rogue malware– This refers to making a user pay for a fake malware removal software by intentionally and falsely claiming to the consumers about their system getting affected by virus.
III. Contraventions
1. Consumer Complaint- If a person/entity (listed above) is engaged in any dark pattern, it may be held liable by the relevant District Commission to compensate a consumer for the loss/injury suffered by him/her. Furthermore, an order may be passed against such entity/person for discontinuance of such unfair trade practice.
2. Enforcement by CCPA- An investigation can be done by the CCPA about complaints relating to violation of misleading advertisements, unfair trade practices and where consumer rights are violated. These investigations can happen in following ways:
a. CCPA on its own motion
b. On a complaint
c. On reference from the government
Notably, non-compliance of CCPA’s order is punishable with up to 6 months of imprisonment and/or fine up to twenty lakhs. It should also be noted that making a misleading/false advertisement which is prejudicial to consumer’s interest would attract criminal liability, as more particularly, for first contravention an imprisonment of up to 2 years along with fine of ten lakh rupees; for subsequent contravention the same shall lead to imprisonment of 5 years and fine of fifty lakhs.
Authors: Malabika Boruah & Tushar Gerewal