By: Sarvagya Chitranshi

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Digital markets in the Indian ecosystem have led to a rise in the number of commercial online players. Each of them faces a tough competition from the other when they grapple to expand their customer base. Such an environment may lead to certain unfair practices that prejudice the rights of a consumer. “Dark Patterns” are one such type of choice-based online architectures that deceive or coerce consumers into making unfavourable choices. The Department of Consumer Affairs (hereinafter “DCA”) have been cognizant of such practices and has urged e-commerce companies to refrain from incorporating dark patterns in their online interfaces. They had previously published two press circulars in June and August 2023 to the same effect. However, this initiative could soon find statutory support through Guidelines for Prevention and Regulation of Dark Patterns, 2023 (hereinafter “Guidelines”) published on 30^th November, 2023. The present essay focuses on the definition of a “dark pattern” under these guidelines and adjudges its applicability and feasibility with regard to the prevalent industry practices.

WHAT ARE DARK PATTERNS?

Dark Pattern was coined by Harry Brignull and refers to a user interface that aims at deceiving, manipulating, or coercing a consumer to make a decision that might not be in their best interest. It is essentially an umbrella term that refers to various practices that prejudice the interest of a consumer to benefit the business. The Guidelines define the term under Guideline 2(e) in a similar manner with four essential criteria –

1. They are deceptive design patterns or user-interfaces
2. That is aimed at tricking or misleading the consumer

• Into essentially doing something which they would not have done usually by subverting their autonomy

1. It amounts to misleading advertisement unfair trade practice or violation of consumer rights

It must be noted here that even though the phrase “amounting to a violation of consumer rights” is used, prejudicing a consumer’s interest is not a necessary criterion to define a dark pattern. As long as a deceptive design is deployed to influence a consumer into doing something which they normally would not have done, the design pattern may be characterised as a dark pattern. The final criterion to be fulfilled is that this design pattern or user interface must amount to either of the violations stated at the end.

There is an exhaustive list of dark pattern practices given in the guidelines in Annexure 1. The guidelines, however, provide that the instances elucidated must only be used for guidance as different factual circumstances would entail appropriate interpretations. The guidelines prohibit any individual or platform from engaging in dark patterns under Guideline 4. Guideline 5 requires a practice to be specified in Annexure 1 of the guidelines for it to be construed as a dark pattern.

The guidelines themselves, however, do not provide for a punishment and place the final onus of determination of a violation upon the Central Consumer Protection Authority under Guideline 7. It, therefore, becomes important to contextualize the violations that a practice must amount to, for it to be construed as a dark pattern.

HOW IS A DARK PATTERN DETERMINED UNDER THE CPA?

A total of 13 practices have been identified in the guidelines –

1. False Urgency
2. Basket Sneaking

• Confirm Shaming

1. Forced Action
2. Subscription Trap
3. Interface Interference

• Bait and Switch
• Drip Pricing

1. Disguised Advertisement
2. Nagging
3. Trick Question

• Saas Billing
• Rogue Malware

The definition of a dark pattern, however, requires a practice to amount to either of three violations sourced from the Consumer Protection Act, 2019 (hereinafter “CPA”) namely misleading advertisement, unfair trade practice, or violation of consumer rights. The third criterion of violation of consumer rights is used in a more generalist sense, thereby laying out a broad mandate. The definition of a misleading advertisement on the other hand is given under S. 2(28) of the CPA. It includes an express or implied representation that amounts to an unfair trade practice. The present analysis focuses specifically on the context of unfair trade practice and determines whether dark patterns would fulfil its threshold.

It should also be noted that under Guideline 5, the practice would be construed as a dark pattern if it can reasonably fit into one of the pigeonholes provided in Annexure 1. It can therefore be reasonably presumed that all illustrative practices of Annexure 1 amount to the specific violation under CPA as envisaged in the definition of a dark pattern. However, a strong case can also be made against any industry practice if the factual circumstances fulfil the threshold for the above-stated violations under the CPA. This could then be in tandem with the factual circumstances corresponding to an illustration from Annexure 1. Considering the ever-evolving nature of digital markets, this approach shall also help in providing a broad interpretation of the guidelines by not restricting the violations strictly to the illustrations in Annexure 1. It is therefore suggested, that a case should be built based on a dark pattern clearly amounting to an unfair trade practice.

UNFAIR TRADE PRACTICE

The CPA defines an unfair trade practice as the usage of any unfair or deceptive method adopted for promoting the sale, supply, or purchase of goods. Under S. 2(47), it then goes on to provide an inclusive list of practices that could be construed as an unfair trade practice. The dark patterns envisaged under the guidelines, on the other hand, can largely be grouped under or characterised by the following features –

1. Non-disclosure, disguising and false representation of information
2. Use of Deceptive Practices including
3. Unnecessary cost inclusion and Data storage
4. Inducement
5. Selectively cumbersome user experience

• Continuous prompts to initiate a contractual relationship

All of these criteria shall be evaluated in light of judicial jurisprudence laying out the requirements for an unfair trade practice.

Non-disclosure of information

The act of not disclosing every important piece of information about a particular service or good is construed to be a deceptive practice. In the case of Max New York Life Insurance Co. Ltd. v. Insurance Ombudsman, the appellant which was an insurance company, demanded additional service tax payments along with the premium amount. The insured person presented the claim that the premium amount was fixed for the insurance policy which was being paid for the initial three years. The tax component only featured from the fourth year onwards. The Kerala High Court stated here that since appropriate disclosure regarding the tax component was not made while offering the insurance policy, the tax component need not be paid. This is because hiding important information about a product at the time of offering will amount to an unfair trade practice. Dark patterns employed to restrict or misrepresent information by any online platforms shall, therefore, amount to an unfair trade practice.

DECEPTIVE PRACTICE

A deceptive tactic can range from employing unethical to outright fraudulent methods for the purpose of business gains. This was well-elucidated in the case of ICICI Prudential Life Insurance Co. Ltd. v. Dattatrey Bhivsan Gujar. The case involved yet another insurance claim, regarding reimbursement of hospital expenses. The Appellant here denied the claim based on the violation of a clause in the insurance agreement of non-disclosure of pre-existing medical conditions. This was based on a single medical certificate obtained by the appellant, the validity of which was under suspicion. It was ruled that this was a deceptive practice since there was no other clear ground to deny the claim except for a suspicious medical certificate. It would not only be unethical but fraudulent on behalf of the Appellant to have obtained the certificate through illicit means.

The international legal jurisprudence lends help in this regard, especially when online space is considered. The Federal Trade Commission in the US had taken action against Amazon earlier this year because it knowingly made the cancellation process for its Prime services complicated for consumers. A large number of consumers were also tricked into subscribing the Prime services without their express consent. It became more difficult for consumers to buy products through the Amazon shopping service without subscribing to the Prime services. There was also an unnecessarily high number of opportunities to subscribe to the Prime service during a customer’s checkout process. Even Apple Distribution was heavily fined under the French Data Protection Act for making targeted advertisements a default setting in the iPhone. It was also highly tedious to change this setting as it included various intermediary steps. There was no option provided to change it during the configuration of a new phone as is provided for other personalized settings. All of these were deceptive tactics that were highly unethical in nature and employed specifically to generate business profits. These precedents can be used to establish any such unethical practices under the ambit of dark patterns amounting to unfair trade practices.

E-CONTRACTS – A UNILATERAL IMPOSITION

Taking undue advantage of unilateral bargaining power amounts to an unfair trade practice. This was made clear in the case of FIITJEE v. Shinjini Tiwari. The case involved the parents of the Respondent’s child who had paid the fees for a 2-year coaching programme in advance. However, due to medical reasons, it became impossible for the child to continue with his classes. The Appellants argued that there was no right to refund the Respondents due to the terms stipulated in the enrolment form. The Court stated here that in such instances, the consumers usually do not have any bargaining power while entering into a contract. Therefore, any clause restricting the refund must not be construed strictly against the student. Even if the student does not find the service rendered to be of a sufficiently satisfactory nature, they can opt out of the programme. Restricting the right to refund for fees paid for a two-year programme in advance amounts to an unfair trade practice. These principles must apply to electronic contracts entered into online as well. The consumer in those instances, does not exercise any bargaining power. If any online platform lures a consumer to enter into a disadvantageous contract on unreasonable terms, then any such term must not be construed against the consumer. Such acts to coerce consumers to enter into unilaterally beneficial e-contracts are dark patterns that must amount to an unfair trade practice.

CONCLUSION

Interpreting the features of dark patterns to fulfil the requirements of an unfair trade practice expands the ambit of these guidelines. In an age of constant digital innovation, the law needs to take a broader approach rather than restricting itself to certain identified practices. As elucidated, the judicial jurisprudence on the interpretation of an unfair trade practice provides certain criteria based on which dark patterns can also be evaluated. The requirements of an unfair trade practice as recognized in the above analysis also capture the features of dark patterns elucidated in Annexure-1 of these guidelines. Consumer protection can, therefore, be ensured if any of the stated features are evident in a digital practice employed by online platforms.

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( Sarvagya Chitranshi is a law undergraduate at Gujarat National Law University, Gandhinagar. The author may be contacted via mail at sarvagya20bsl014@gnlu.ac.in )

Cite as: Sarvagya Chitranshi, Contextualising Dark Patterns as Unfair Trade Practices under the 2023 DCA, 4th February, 2024 <https://rmlnlulawreview.com/2024/02/04/contextualising-dark-patterns-as-unfair-trade-practices-under-the-2023-dca/> date of access.