Dark patterns are exploitative practices used on the internet to deceive consumers. They include actions like adding items to a shopping cart without user consent, changing prices during checkout, and creating false urgency to prompt purchases.

The Advertising Standards Council of India (ASCI) has issued new guidelines to combat deceptive design patterns, expanding their scope beyond advertising. The guidelines state that not disclosing final prices, baiting consumers with misleading product information, creating false urgency, and using disguised ads as testimonials or influencer posts will be deemed misleading. E-commerce platforms and advertisements must now quote prices upfront, including all relevant charges, instead of revealing them later in the buying process. Misleading practices, such as falsely limiting product quantities and disguising ads as editorial content, are also considered misleading under the new guidelines. These guidelines will be applicable from 1st September 2023

  • Who operates as a digital platform, providing services to consumers through its online interface. Dark patterns regulations, as discussed in the ASCI’s Discussion Paper and international guidelines, typically apply to digital platforms and online services.

 Secondly, the ASCI’s Discussion Paper focuses on practices that deceive or manipulate users, particularly in the context of consumer choice, privacy, and fair transactions. As an e-commerce platform, the company’s user interface and marketing practices may involve elements such as product listings, pricing, data collection, and user interactions that can potentially be scrutinized for the presence of dark patterns.

  1. Bait and Switch: To comply with regulations, E-commerce company should ensure that the products/services and prices advertised are accurately represented, and consumers are not misled.
  2. False Urgency: To comply with regulations, E-commerce company should accurately communicate the availability of products/services without creating a false sense of urgency.
  3. Drip Pricing: If E-commerce company discloses only a partial price of a product and reveals the total price, including additional charges, at the end of the buying process, it could be considered a dark pattern. To comply with regulations, E-commerce company should provide transparent pricing upfront, including all non-optional taxes, duties, fees, and charges applicable to most buyers.
  4. Disguised Advertising: To comply with regulations, E-commerce company must ensure that any advertising content, regardless of its format, is clearly identified as an advertisement.

Actions under Indian laws: This comes under the ambit of Misleading Advertisements and Unfair Trade Practices under the Consumer Protection Act 2019. The Consumer Protection (E-Commerce) Rules, 2020.

 the consumer has to explicitly consent to the purchase of goods/services through an affirmative action and their consent should not be recorded automatically, including in the form of pre-ticked boxes.

  • Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“SPDI Rules”),
    • The SPDI Rules require entities to seek explicit and informed consent before the SPDI of users can be collected and used, but also require that users be provided with the ability to withdraw their consent.
    • Thus, the SPDI Rules impose compliances on entities to ensure that users are aware of the kind of information that is being shared by them and also have the ability to opt-out of such information sharing.

Considering the aforementioned regulations and recommendations, it is crucial for E-commerce company to take proactive measures to ensure compliance and prioritize consumer protection. To avoid potential legal ramifications, we recommend the following actions:

  • Self-Regulation:
    • E-commerce company can establish ethical design guidelines that discourage the use of dark patterns.
    • Encourage responsible design practices and conducting independent audits can help identify and rectify dark pattern issues.
  1. Review and revise advertising practices: Conduct a comprehensive review of advertising materials, including online interfaces, to ensure compliance with the ASCI’s existing code and guidelines. Pay particular attention to Bait and Switch, False Urgency, Drip Pricing, and Disguised Advertising practices.
  2. Transparent disclosure: Clearly disclose any advertisements or promotional content that may resemble editorial or organic content. This will help prevent any confusion or potential deception for consumers.
  3. User interface design: Ensure that the user interface design of digital platforms, including websites and mobile applications, does not employ dark patterns. Avoid tactics such as Privacy infringement, Confirm-shaming, Checkbox Treachery, Nagging, or Sneak-in Basket practices.
  4. Privacy: E-commerce company should ensure that its user interface does not deceive users into sharing more information than necessary. Transparency in data collection and providing users with clear and informed choices regarding their personal information are essential.
  5. Checkbox Treachery: E-commerce company must avoid using obfuscator checkboxes that confuse or mislead users regarding the use of their contact data. Consent mechanisms should be clear, unambiguous, and give users genuine control over their data.
  6. Nagging: E-commerce company should not engage in persistent and intrusive requests that repeatedly ask users for the same information or consent. Users should have the option to easily decline or opt out without being subjected to undue pressure.
  7. Sneak-in Basket: E-commerce company should refrain from adding additional products to the consumer’s basket without their knowledge or explicit consent. Transparency and providing users with complete information about the contents of their basket are essential.