WHAT IS DARK PATTERN?
HAVE YOU EVER SHOPPED ONLINE AND ENCOUNTERED AN ADVERTISEMENT THAT POPS UP, CLAIMING “ONLY 1 LEFT, 10 PEOPLE ARE VIEWING!’’,
OR FOUND YOURSELF UNEXPECTEDLY SUBSCRIBED TO SOMETHING WITHOUT YOUR CONSENT? PERHAPS YOU’VE EVEN DISCOVERED AN ITEM IN YOUR CART THAT YOU DIDN’T INTEND TO PURCHASE.
If any of these situations sound familiar, then you’ve likely fallen victim to what’s known as DARK PATTERNS.
Amid concerns about misleading advertising, a rapidly growing technique called Dark Patterns has gained prominence. Dark Patterns are unethical advertising techniques embedded in user interfaces (UI) and user experiences (UX), manipulating and deceiving consumers to prioritize business interests over user interests.
Dark Patterns exploit psychological vulnerabilities, causing consumers to deviate from rational judgment and ultimately benefiting sellers/owners. Dark patterns are in the eye of the beholder, It’s important to note that what one person might consider a Dark Pattern, another might see as a helpful guide. However, the defining characteristic of these patterns is that they primarily benefit the company or seller, making them truly “dark.”
What is shocking is that these kinds of techniques are used in Day-to-day physical shopping as well. Like have you ever gone to buy groceries and found an offer that if you buy 1kg of potato, you will get half a kg of sugar for free. The allure of “FREE” often compels us to make such purchases, even though we end up paying for both items, including one we didn’t initially want… When something like this happens on a digital platform, we name them dark patterns.
TYPE OF DARK PATTERNS
Therefore it becomes important to understand these types of patterns. Let’s delve into some of the dark patterns associated with:
- Bait and Switch: Advertising a desirable outcome for an attractive price while providing something far less desirable or more expensive. For example, you may add an item to your cart only to discover it is suddenly "out of stock" or "no longer available" during checkout, which the website intentionally delays to encourage you to keep shopping or consider a more expensive option.
- False Urgency: This tactic creates an illusion of scarcity to entice users into making immediate purchases by creating the illusion of a limited supply. In some cases, the product may be advertised as being in limited supply or with false popularity metrics. For instance, an e-commerce site may claim, "Only 3 items left in stock, 10 viewing!", which changes after refreshing the page, revealing the scarcity was not genuine. This kind of tactic works using FOMO of people and makes them exhibit compulsive behaviour.
- Basket Sneaking: Basket sneaking occurs when items are added to your cart, without your consent, at checkout, resulting in a higher total price than you intended. For instance, while you are enrolling in a free online course, a hidden checkbox signs you up for a paid course with recurring charges unless you notice and uncheck it. Now, this takes away our choice.
- Forced Action: The act of forcing users to purchase or subscribe to unrelated services to access the original product. For example, during an online retail checkout, a pre-selected checkbox subscribes you to a newsletter without your explicit consent.
- Interface Interference: Misdirecting users away from their desired actions by emphasizing certain details while hiding others. For instance, designing a less prominent "No" option in response to a pop-up asking if you wish to make a purchase. OR Making it impossible to unsubscribe from something while subscribing was very easy
PSYCHOLOGICAL EXPLOITATION – FOMO
There are many other Dark patterns just like some mentioned above. One of the psychological tactic used by these patterns are triggering the Fear of Missing out on People. There is no doubt that the sentiment of ‘FEAR OF MISSING OUT’ (FOMO) has become more prevalent in recent years. Quite simply, it is a phenomenon, driven by the fear of missing out on opportunities and experiences that others are enjoying and acting compulsively because of it… FOMO is one of the primary psychological tactics in demand by sellers to manipulate consumers by creating a sense of urgency and coercing them into making purchases.
In today’s highly competitive world, deepened by the effects of the Industrial Revolution and India’s embrace of globalization, sellers face increasing challenges in promoting their products. This has led to the emergence of these unfair trade practices (Dark Patterns), making consumer protection more critical than ever.
DARK PATTERN – LEGAL FRAMEWORK
India introduced the Consumer Protection Act to protect consumer rights and interests. From ‘Caveat Emptor’ i.e. buyers be aware to ‘Consumer is King’ and despite the evolution of the Consumer Protection Act, 1986 to the Consumer Protection Act, 2019, Sellers are still manipulating consumers by exploiting loopholes that allow them to deceive consumers.
While Indian law introduced the Consumer Protection Act to safeguard consumer rights, sellers continue to exploit loopholes to deceive consumers. They adapted their tactics, shifting from exploiting buyer innocence to targeting buyer’s psychological vulnerabilities.
The Government enforces various laws and guidelines to prevent misleading advertisements. Among them are:
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- The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954:This law was passed in order to punish individuals who falsely advertise drugs and medical cures.
- Consumer Protection Act, 2019:Introduced guidelines in 2022 for the Prevention of Misleading Advertisements and Endorsements, covering various forms of advertising. However, it lacks specific provisions for digital advertisements.
- To protect consumers from unfair trade practices, section 2 of the CPA outlines their rights, including the right to information about the quality, quantity, potency, purity, standard, and price of goods or services.
INTERNATIONAL FRAMEWORK TO COUNTER DARK PATTERNS
Foreign countries have also recognized the issues surrounding Dark Patterns in online commerce and have implemented various measures to address them. Some notable examples include:
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- United States: the Federal Trade Commission (FTC) in the United States wields the authority to investigate and take action against unfair and deceptive trade practices. The FTC has proactively issued guidelines and warnings addressing the use of deceptive user interfaces, underscoring its commitment to protecting consumers from manipulative tactics. Additionally, various states within the U.S., such as California, have implemented laws aimed at bolstering transparency and curbing the prevalence of specific Dark Patterns. These legislative efforts collectively seek to create a more consumer-friendly online environment while discouraging deceptive practices in online commerce.
- EU: the European Union (EU) has taken a comprehensive approach to safeguarding consumer protection and privacy, exemplified by regulations like the General Data Protection Regulation (GDPR). Within the GDPR, there are provisions specifically designed to enhance transparency, ensure informed consent, and uphold the right to be informed, all of which indirectly influence and address the use of Dark Patterns in online interactions. By emphasizing these principles, the EU aims to create a digital landscape that respects individuals' privacy and empowers consumers to make informed decisions while discouraging the deceptive practices associated with Dark Patterns.
- Australia: Australia has put in place a robust system of consumer protection laws, overseen and enforced by the Australian Competition and Consumer Commission (ACCC). These laws have a clear mandate to prohibit deceptive and misleading conduct in all forms, which naturally includes the use of Dark Patterns in online commerce. By explicitly targeting such deceptive practices, Australia's consumer protection laws aim to ensure fairness, transparency, and trust in the marketplace, ultimately benefiting consumers and promoting ethical business conduct. These laws prohibit deceptive and misleading conduct, which can include the use of Dark Patterns.
DARK PATTERNS – AN UNSUSTAINABLE BUSINESS STRATEGY
Two factors contribute significantly to a business’s success: good corporate governance and sustainability. AND these DARK PATTERNS VIOLATE BOTH.
Dark Patterns violate a fundamental element of corporate governance, which is transparency which ultimately leads to unfair trade practices, which can also be labelled as unsustainable techniques. These techniques might deceive consumers in the short term, but in the long run, these dark patterns will have an adverse impact on the company as well.
SUSTAINABLE DEVELOPMENT GOALS (SDG) – GOAL 16
In the case of sustainability, it is one of the core Sustainable Development Goals, specifically Goal 16. This goal focuses on Peace, Justice, and Strong Institutions. It aligns with the broader human rights framework by promoting societies that respect and uphold individual rights, including the right to privacy, freedom of expression, and access to information. The lack of access to justice means that conflicts remain unresolved, and people cannot obtain protection and redress. Institutions that do not function according to legitimate laws are prone to arbitrariness and abuse of power, making them less capable of delivering public services to everyone.
HOW TO DEAL WITH DARK PATTERNS – WHAT TO DO?
We people like to make informed decisions but these patterns take away that choice. Also, the human brain is almost always overwhelmed with information which makes it hard for us to notice these patterns. Dark patterns lie in front of us but still, our brains sometimes do not process them. In light of the increasing prevalence of dark patterns, it is essential to proactively safeguard yourself. Here are some recommended steps to protect your interests:
- Read Carefully: Take the time to read fine print, checkboxes, and notifications during online interactions, including terms and conditions and privacy policies. Time might be considered money but sometimes taking time and reading might actually save you a lot of money.
- Look for Pre-Selection: Make sure you scrutinize checkboxes carefully to avoid pre-selected options.
- Check for Hidden Costs: Verify that the total cost displayed during online purchases includes all fees and additional charges. Dark patterns may hide extra costs until the final payment step.
- Report Unethical Practices: Report websites or apps that use dark patterns to relevant authorities or consumer protection agencies.
- Check for Consistency: Be cautious if you notice inconsistencies in website or app design and behavior.
- Visit Review Sites: Research and read user reviews before engaging with a website or app.
- Learn About Dark Patterns: To recognize subtle manipulations, learn about dark patterns through examples and case studies.
- Trust Your Instincts: Don’t be fooled by websites or apps if something seems off or suspicious.
These strategies can help you safeguard yourself against the dark takeover of the dark patterns.
CONCLUSION
The battle against Dark Patterns extends far beyond a mere legal or regulatory struggle; it represents a collective endeavour uniting consumers, businesses, and governmental authorities. This collaborative approach ensures a brighter and more equitable future for all consumers, fostering a marketplace where integrity, fairness, and consumer trust prevail.
These insidious Dark Patterns wield far-reaching consequences. They erode user trust, leading to diminished engagement and tarnishing a brand’s image. Moreover, they raise significant ethical concerns for companies. The current legal landscape, unfortunately, falls short of adequately addressing this growing issue. Therefore, it is imperative for governments and regulatory bodies to acknowledge the gravity of Dark Patterns and take swift action by enacting laws specifically designed to combat these deceptive tactics.
India’s existing consumer laws, while comprehensive in some aspects, fail to adequately address this issue. However, the government has taken commendable steps towards rectifying this by introducing the draft Guidelines on Dark Patterns in 2023. This initiative marks a substantial leap toward prohibiting Dark Patterns, making it easier to identify and combat these harmful practices.
The ever-evolving landscape of technology, with the emergence of Artificial Intelligence, Meta technology, imitation strategies, and the prevalence of influencer marketing, will undoubtedly pose substantial challenges to ethical consumer marketing in the coming years. As a result, we can expect to witness a growing number of regulations aimed at preserving consumer democracy. This ongoing battle is pivotal to safeguarding the interests and trust of consumers in an increasingly complex digital marketplace.