Central Consumer Protection Authority Issues Guidelines For Prevention And Regulation Of Dark Patterns [Read Notification]

The Central Consumer Protection Authority, in exercise of powers under Section 18 of the Consumer Protection Act, 2019, has issued some guidelines to provide for the prevention and regulation of dark patterns. The guidelines are called the Guidelines for Prevention and Regulation of Dark Patterns, 2023.

As per the regulations notified on November 30, 2023, “dark patterns” means any practices or deceptive design pattern using user interface or user experience interactions on any platform that is designed to mislead or trick users to do something they originally did not intend or want to do, by subverting or impairing the consumer autonomy, decision making or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer rights.

The notification reads, “specified dark patterns mean the dark patterns as listed and defined in Annexure 1 and shall include any other dark pattern that Central Consumer Protection Authority may specify from time to time or otherwise.”

The said guidelines will be applicable to all platforms, systematically offering goods or services in India; advertisers; and sellers.

The notification states about the prohibitions against engaging in dark patterns. It reads, “No person, including any platform, shall engage in any dark pattern practice.”

“Conditions for dark patterns. - Any person, including any platform, shall be considered to be engaging in a dark pattern practice if it engages in any practice specified in Annexure 1 of the guidelines. … Guidelines not in derogation of other laws. –– Where a dark pattern practice is regulated under any other law for the time being in force or the rules or regulations made thereunder, the provisions contained in these guidelines shall be in addition to and not in derogation of such other laws”, says the notification.

In case of any ambiguity or dispute in interpretation of the guidelines, the decision of the Central Consumer Protection Authority will be final. As per Annexure 1 of the notification, the following have been specified as Dark Pattern practices –

(1) “False Urgency” means falsely stating or implying the sense of urgency or scarcity so as to mislead a user into making an immediate purchase or taking an immediate action, which may lead to a purchase, including - (i) showing false popularity of a product or service to manipulate user decision; (ii) stating that quantities of a particular product or service are more limited than they actually are.

(2) “Basket sneaking” means inclusion of additional items such as products, services, payments to charity or donation at the time of checkout from a platform, without the consent of the user, such that the total amount payable by the user is more than the amount payable for the product or service chosen by the user.

(3) “Confirm shaming” means using a phrase, video, audio or any other means to create a sense of fear or shame or ridicule or guilt in the mind of the user so as to nudge the user to act in a certain way that results in the user purchasing a product or service from the platform or continuing a subscription of a service, primarily for the purpose of making commercial gains by subverting consumer choice.

(4) “Forced action” mean forcing a user into taking an action that would require the user to buy any additional goods or subscribe or sign up for an unrelated service or share personal information in order to buy or subscribe to the product or service originally intended by the user.

(5) “Subscription trap” means the process of- (i) making cancellation of a paid subscription impossible or a complex and lengthy process; or (ii) hiding the cancellation option for a subscription; or (iii) forcing a user to provide payment details or authorization for auto debits for availing a free subscription; or (iv) making the instructions related to cancellation of subscription ambiguous, latent, confusing, cumbersome.

(6) “Interface interference” means a design element that manipulates the user interface in ways that (a) highlights certain specific information; and (b) obscures other relevant information relative to the other information; to misdirect a user from taking an action as desired.

(7) “Bait and switch” means the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome.

(8) “Drip pricing” means a practice whereby- (i) elements of prices are not revealed upfront or are revealed surreptitiously within the user experience; or (ii) revealing the price post-confirmation of purchase, i.e. charging an amount higher than the amount disclosed at the time of checkout; or (iii) a product or service is advertised as free without appropriate disclosure of the fact that the continuation of use requires in-app purchase; or (iv) a user is prevented from availing a service which is already paid for unless something additional is purchased.

(9) “Disguised advertisement” means a practice of posing, masking advertisements as other types of content such as user generated content or new articles or false advertisements, which are designed to blend in with the rest of an interface in order to trick customers into clicking on them.

(10) “Nagging” means a dark pattern practice due to which a user is disrupted and annoyed by repeated and persistent interactions, in the form of requests, information, options, or interruptions, to effectuate a transaction and make some commercial gains, unless specifically permitted by the user.

(11) “Trick Question” means the deliberate use of confusing or vague language like confusing wording, double negatives, or other similar tricks, in order to misguide or misdirect a user from taking desired action or leading consumer to take a specific response or action.

(12) “Saas billing” refers to the process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model by exploiting positive acquisition loops in recurring subscriptions to get money from users as surreptitiously as possible.

(13) “Rogue Malwares” means using a ransomware or scareware to mislead or trick user into believing there is a virus on their computer and aims to convince them to pay for a fake malware removal tool that actually installs malware on their computer.

Click here to read/download the Notification