GS Paper II

News Excerpt:

The Central Consumer Protection Authority (CCPA) has notified guidelines for preventing and regulating dark patterns. 

Key guidelines:

• The Guidelines for Prevention and Regulation of Dark Patterns, 2023, issued under section 18 of the Consumer Protection Act, 2019, were notified by the CCPA in the official gazette.
• “Dark patterns” shall mean any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform 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.
• “Specified Dark patterns” shall mean the dark patterns as listed and defined in Annexure 1 and any other dark pattern that CCPA may specify from time to time or otherwise.
• Application: These guidelines shall apply to:
  • All platforms systematically offering goods or services in India.
  • Advertisers
  • Sellers
• Prohibitions against engaging in dark patterns: No person, including any platform, shall engage in any dark pattern.
• Conditions for dark patterns: Any person, including any platform, shall be considered to be engaging in a dark pattern if it engages in any practice specified in Annexure 1 of the guidelines.
• Guidelines not in derogation of other laws: Where a dark pattern 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 regulation in other laws.
• Interpretation: In case of any ambiguity or dispute in the interpretation of the guidelines, the CCPA's decision shall be final.

The Annexure-1 of guidelines have a list of specified dark patterns

Arguments against guidelines:

• Some key clauses were broad and ambiguous, which could potentially burden the judiciary.
• Online is around 6% of the overall retail industry in the country, and there is fear that such guidelines could be misused by law enforcement agencies to crack down on companies that have legitimate business practices.
• The new guidelines fall short of giving teeth to the rule as the CCPA has removed clause 8, which states that the provisions of the Consumer Protection Act, 2019, shall apply to any contravention of the guidelines.
• The notified guidelines state that the specified dark pattern practices and illustrations “provide only guidance and shall not be construed as an interpretation of law or as a binding opinion or decision as different facts or conditions may entail different interpretations”.
• This could lead to  confusion and ambiguity while increasing the compliance burden on the e-commerce, online and consumer internet industry.

Arguments in favour of guidelines:

• The guidelines have a great impact as they enable regulators to go after the erring players.
• The hospitals and online grocers, where basket sneaking is prevalent, will get reduced.
• LocalCircles, seeking detailed consumer feedback on dark patterns for all major platforms -
• Preliminary consumer feedback indicates that travel (flight and hotel booking), event ticketing, and subscription services (app stores, software and OTT) have the highest incidences of dark patterns followed by other sectors like e-commerce, food and taxi aggregators.
• For example, an online travel or hotel booking company would show a particular price of the ticket or hotel room to the customer and then quickly increase the cost after analysing the consumer behaviour or detecting any kind of desperation.
• Guidelines will address this issue effectively.
• These guidelines would bring in more ethics into the e-commerce platforms, so that nobody takes advantage or deceive the consumers.

Conclusion:

It is crucial for regulators to revisit the guidelines and publish clarifications in the interest of consumers and the industry equally. The rules for dark patterns under the Consumer Protection Act are a step in the right direction to reduce consumer manipulation by sellers and platforms.