December 8, 2023
📰 FEATURE STORY
Are India’s guidelines on dark patterns too strict?
Since we’re doing a lot of activities like shopping online, as consumers we expect apps and websites to be easy to use. The interface should be easily navigable, understandable, and efficient. We want the whole experience to be as seamless as possible. But that means we often miss the devil in the details.
Dark patterns are designs that manipulate or influence users to make certain choices. It can range from ticking boxes on sites for privacy settings to making purchases online. Companies want you to spend as much time as possible on their sites. That’s money in their bank accounts. But the question is – is any of this legal/ethical? The Indian government has released guidelines on the prevention and regulation of dark patterns. While it may protect consumers, does it go too far?
Context
Companies spend a lot of resources on ensuring their user experience translates to people spending more time and/or money on their platforms. That’s understandable since people need a seamless user experience in navigating sites and finding what they want. If not, users get frustrated and won’t use that app or site.
Design language helps direct users on how to accomplish their tasks. Simple things like the ‘+’ or ‘–‘ buttons to add or remove/reduce the number of items you’ve added to an online shopping cart. User Experience (UX) designers spend a lot of time making their software as intuitive as possible.
Trouble arrives when the experience stealthily goes against the user’s priorities. In 2010, a UX researcher from the UK named Harry Brignull coined the term “dark patterns”. Simply put, it’s deceptive design and strategies to trick or intentionally manipulate people into making specific actions and choices that are often not in their best interest.
Take Instagram as an example. Many users get a pop-up requesting permission to use their app and website activity to provide a better ad experience. They then get two options – a darker shade of black than the pop-up background provides the option to “make ads less personalised” and a bright blue box gives the option to “make ads more personalised”. This is an example of a dark pattern.
Also, using terms like “activity” and “personalised” instead of “tracking” and “targeting” is another example. Most people obviously don’t want Instagram to know everything about their activity on the site. But doesn’t “better experience” or “personalised experience” sound like a good thing? Cancelling subscriptions to a service can often be cumbersome. They sometimes follow the ‘you can check out anytime you like but you can’t leave’ formula. If you’re interested in other examples, this site is a useful resource.
Is anything being done about this? Well, governments and regulators have taken notice. The Competition and Markets Authority (CMA) of the U.K. outlined different pressure-selling techniques to the government that they believed violated consumer protection laws. Last year, the European Data Protection Board released guidelines that offered designers and users of social media platforms to spot and avoid dark patterns that violate General Data Protection Regulation (GDPR) laws.
The trick is to clearly define and identify what constitutes a dark pattern. It’s also hard for consumers to know what information they’re giving away unwittingly since so much happens behind the scenes.
In India, the Department of Consumer Affairs, and the Advertising Standards Council of India (ASCI) have identified the issue. Under the guidelines of the Central Consumer Protection Authority (CCPA), 13 dark patterns have been identified and banned. Companies will face hefty penalties if they violate these terms (access the regulations document listing the dark patterns here).
The question is, do the government’s regulations go too far? Would they affect businesses?
VIEW: Consumer should be king
The rules and guidelines issued under Section 18 of the Consumer Protection Act are a significant step forward since dark patterns have been largely untouched in India. The rules are also quite comprehensive and wide-ranging. They cover a broad swath including sellers, advertisers, and platforms that provide goods and services. They also apply to businesses outside India that cater to Indian citizens.
The guidelines also explicitly recognise the fact that dark patterns are manipulative and undermine consumer autonomy. So, any dark pattern will be subject to pre-existing consumer protection measures. By providing a comprehensive list with examples, a couple of things are accomplished. First, a consumer doesn’t have to prove how a UX design or pattern undermines their autonomy on a case-to-case basis every time. Second, it helps contextualise dark patterns within clearly defined scenarios and sectors.
These are all good things given the relationship between dark patterns and user consent within India’s privacy framework. The rules on dark patterns are part of an effort by the government and regulators to safeguard user privacy. It’s in keeping with recent legislation like the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules and the Digital Personal Data Protection Act.
COUNTERVIEW: Concerns remain
If you’re a company or platform that engages lots of consumers every day, then these guidelines are bad news. The Asia Internet Coalition (AIC), which represents companies like Google, Amazon, and Meta, stated the guidelines are a step backwards and could stagnate the growth of India’s burgeoning e-commerce sector. This could then affect the ease of doing business in India, especially if the government wants more companies to come here.
The companies feel they’re being harshly targeted for legitimate business practices. The AIC says an initial first step should be self-regulation. Given the evolving nature of UX design and technology to deploy dark patterns, self-regulation would allow companies to adapt and change their internal policies without additional unnecessary compliance burdens.
Some of the definitions in the guidelines are too broad and vague. Who determines “effective marketing” and “undue interference with the user experience”? They can be subjective. This could lead to disputes and litigation which is an expensive prospect. Stricter regulations mean smaller companies will struggle since they’ll need more resources to periodically invest in redesign and testing to ensure their user interfaces are compliant. Unless the rules are more nuanced, there’ll be an imbalance between safeguarding consumers and supporting businesses.
Reference Links:
- Dark patterns, the tricks websites use to make you say yes, explained – Vox
- How to Spot—and Avoid—Dark Patterns on the Web – Wired
- What are dark patterns and why has the Indian government banned them – Moneycontrol
- Government has banned 13 “dark patterns” on e-commerce websites: What are they? – Times of India
- Navigating Deception: Dissecting the Implications of India’s Guidelines on ‘Dark Patterns’ – The Wire
- Shaping ethical user experiences: India’s draft guidelines on dark patterns need a lot more nuancing – Financial Express
- Tech group calls India’s proposed guidelines against dark patterns ‘regulatory overlap’ – Tech Crunch
- India’s norms against dark patterns may hurt ease of doing business: Big Tech coalition – Tribune India
What is your opinion on this?
(Only subscribers can participate in polls)
a) India’s guidelines on dark patterns aren’t too strict.
b) India’s guidelines on dark patterns are too strict.
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