E-commerce ‘’Dark Patterns’’ – An Unfair Trade Practice

Over the past few decades, the e-commerce sector has evolved significantly. Consumers are making more online purchases than ever before. To battle growing competition, e-commerce retailers are modifying their online platforms such that it attracts customers, grabs their attention and nudges them towards completing the purchase by well designed user interfaces that influence users’ behaviour. It is not unusual for customers to add products to an e-com shopping cart, only to abandon the cart and move on to another website. This is potentially a loss to the seller, who then resorts to explicit, deceitful design choices that manipulate the user into proceeding with the purchase, or making choices that they might not have otherwise done. These are called ‘dark patterns’. ‘Dark patterns’ are used to manipulate customers into taking action, such as with triggering notifications about the scarcity of a product, urgency of sale, or social desirability of the product they might show interest in.

Section 2 (47) of Consumer Protection Act (CPA), 2019 defines Unfair Trade Practices as:

“A trade practice which, to promote the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice”. Thus the term “unfair trade practices” describes dishonest, fraudulent, or unethical commercial practices. Misrepresentation, false promotion or representation of an item or service, fake free-gift or reward offers, deceptive pricing, and noncompliance with manufacturing standards are examples of unfair commercial practices. Since dark patterns are a form of misrepresentation and false promotion, these do come under the purview of the CPA.

Dark patterns typically use messages of the following types:

1. Urgency

A customer is continuously notified of the ending of a deal or sale, especially of those products that are of interest to them. There are two types of urgency patterns: countdown timers and limited time notifications. Often, the offer continues to be valid even after the time has run out. 

2. Misdirection-

Trick questions and “confirmshaming” are two examples of the visual, linguistic, and emotional manipulations that frequently lead to misdirections. Confirmshaming is a dark pattern that shames visitors who choose not to register or sign up. The first section of the image below is visually striking and designed to draw the user in. Subtle colours and a tone that suggests the visitor is foolish to not sign up are used in the design of the second section. 

3. Social proof

A dark pattern where a customer is goaded into buying through real or fake messages that another customer has just bought the same product.

4. Scarcity

This notification of limited availability and high demand pushes the user into purchasing a product. These pop up messages are also deceptive in many cases showing randomly generated low numbers of stock or out of stock messages. Advertising an appealing product and then revealing that it is out of stock can create disappointment in a buyer. The seller then quickly offers an alternative product.

5. Forced action

The user is forced to sign up and share their personal data (for example, their credit card details), before having access to all of its services. When the customer forgets to cancel at the end of the free trial period, they are automatically charged for their subscription. Sometimes cancelling the subscription is also made unnecessarily confusing and tedious.

6. Hidden costs

Adding a product to the cart at a reasonable price shown in the site, but when finally reaching the last step of checking out, the price shown is a lot more than the customer began with, with charges of shipping and taxes hidden at the beginning.

7. Disguised advertising

Advertisements that are disguised as other kinds of content or navigation, to attract customers. Influencer posts, sponsored reviews, and advertising as content are all examples of disguised advertising.

Influence on customers-

The Indian consumer is not immune to dark patterns, and as online commerce grows, this is an increasing area of consumer vulnerability.

*Harms to consumer autonomy – making choices based on false or paid-for reviews

*Personal consumer detriment

*Financial loss – such as buying a more expensive product, paying more than what was initially disclosed.

*Privacy harms – sharing data

*Psychological detriment and time loss

*Structural consumer detriment – having a cumulative impact on consumers collectively, even where they have imperceptible harms at the individual level.

*Weaker or distorted competition

*Less consumer trust and engagement

Legality of dark pattern:

*The legality of dark patterns is a complex matter as distinguishing between manipulation and fraudulent intent can be challenging.

*As of now, there are no specific regulations in place in most nations against dark patterns.

*Nonetheless, individuals who have experienced harm as a result of dark patterns may potentially seek compensation for damages.

*In 2022, Google and Facebook faced repercussions due to their cookie banners.

*These companies violated EU and French regulations by making it more difficult for users to reject cookies as compared to accepting them.

Addressing dark patterns:

*Guidelines from the European Data Protection Board were released in 2022 and offered designers and users of social media platforms practical guidance on how to spot and avoid so-called “dark patterns” in social media interfaces that are in violation of General Data Protection Regulation (GDPR) laws.

*The Department of Consumer Affairs and the ASCI have identified the issue and recently taken certain steps to handle the same.

*As of now, companies are being asked to desist from using such tactics in the e-market.

* Major Indian online marketplaces warn against engaging in “unfair trade practices” by implementing “dark patterns” in their user interfaces to influence consumer choice and infringe on “consumer rights” as stated in Section 2(9) of the Consumer Protection Act, 2019.

Conclusion:

With the growing use of e- platforms, a robust legal mechanism is a demand. To do this, new rules aimed against deceptive design practices may need to be introduced along with updated consumer protection laws and data protection legislation.