In the dynamic business landscape, many businesses are pushing the digital medium to advertise their goods/services and connect with consumers. As companies jostle to increase their market share and brand recall, the tall claims are made. Resultantly, the boundaries between puffery and misleading advertisements is blurring. The Advertising Standards Council of India (ASCI) annual report shows a sharp increase in misleading advertisements in the digital media considering large number of consumers are using e-commerce websites for shopping and subscribing to OTT platforms for watching movies, web series, etc.

The growth of e-commerce has made Central Consumer Protection Authority to notice and clamp down on misleading advertising practices by introducing the ‘Guidelines for Prevention and Regulation of Dark Patterns’ on November 30, 2023. The Guidelines apply to:

1. all platforms (including websites and mobile apps) offering goods or services in India;
2. advertisers; and
3. sellers

The Guidelines have been issued after extensive consultation with the stakeholders. Similar guidelines have been issued by the European Union under the Digital services Act.

These guidelines prohibit dark patterns practice. Dark Patterns is defined as “any practices or deceptive design pattern using user interface or user experience interactions on any platform that is 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.”

These guidelines list various Specified Dark Patterns, as discussed below:

1. False Urgency

This refers to creating false urgency or scarcity to mislead a user into taking immediate action. This can be done by showing the false popularity of a product or showing that the product is available in limited quantity.

For example, mentioning that the offer is for a limited time exclusively for select users or few rooms remain, and many viewers are currently looking at it is prohibited.

2. Basket Sneaking

It consists of including additional items such as products/ services at the time of checkout without the user’s consent, due to which the total amount to be paid is more than the amount due from the consumer. The addition of necessary fees (delivery charges, taxes etc.) disclosed at the time of product purchase to the consumer does not amount to basket sneaking.

For example, the addition of travel insurance or charity donation automatically when the user purchases a travel ticket or the automatic addition of paid ancillary services with a pre-ticked box or the addition of an annual subscription fee without the user’s consent is prohibited.

3. Confirm shaming

This refers to adding certain words, video, audio to create fear or shame or ridicule or guilt in the user’s mind resulting in the user purchasing a particular product/service from the platform.

For example, deliberately adding a few words and luring the user to buy an insurance plan during the travel booking or inducing the user to contribute for the charity donation without their consent is not permitted.

4. Forced action

It refers to forcing the user into buying additional goods or signing up for an unrelated product/service or sharing personal information to buy/subscribe to the product/service originally intended by the user.

For example, forcing a user to subscribe to a newsletter to purchase a product or download an unrelated mobile app to access the service originally advertised on another mobile app or forcing a user to share personal information linked with Aadhar or credit card even though such details are not required is not permitted.

5. Subscription Trap

It implies the cancellation of a paid subscription is impossible or a lengthy process or instructions related to the cancellation of a subscription are ambiguous or hidden. Further, asking the user to provide authorization for auto-debits to avail of the free subscription amounts to a subscription trap.

For example, the cancellation option of a paid subscription cannot be easily accessed or the cancellation of a paid subscription is not clear or adding auto-renewal for a paid subscription.

6. Interface Interference

This refers to highlighting specific information and concealing relevant information to misdirect a user from taking the desired action.

For instance, designing a less prominent colour tab to select “No” in response to a pop-up or asking a user if it wishes to make a purchase or concealment of cancellation symbol in a tiny font is not permitted.

7. Bait and switch

This refers to the practice of displaying/offering a specific product based on the user’s action or wrongly showing the product is available and instead offering the alternate product at a higher price product in place of it.

For example, offering a product at a cheap price but when the buyer is about to buy it, it is reflected as not available in the cart and instead, a similar product available at a higher price is offered or falsely representing ‘out of stock’ product as ‘available’ and instead offering a higher price product in place of it.

8. Drip pricing

The pricing details are not revealed upfront to the user. The pricing is revealed surreptitiously, or a higher amount is charged at the time of checkout than initially disclosed or the product/service is advertised as free without disclosing that the mobile app needs to be purchased to avail the product. The e-commerce platform is not liable for price variation due to the price change by third-party sellers.

For example, asking for payment after a few days to play the game on the app which was initially advertised as free and not disclosing it to the consumer at the time of downloading the mobile app or charging a higher price for travel booking than initially shown amounts to Drip Pricing.

9. Disguised advertisement

This refers to the practice of masking advertisements that are designed to blend with the rest of the interface to trick customers into clicking on them.

In such cases, the content posted by a seller or advertiser on a platform, the responsibility of disclosing that such content is an advertisement shall be on the seller or advertiser. The disguised advertisements also include misleading advertisement, as defined in Section 2(28) of the Consumer Protection Act, 2019

10. Nagging

The user receives repeated requests/pop-ups or interruptions to conduct a transaction unless specifically permitted.For example, if the user is repeatedly asked to download the mobile app or platforms asking users to share their phone numbers or other personal details for security purposes.

11. Trick Question

This refers to the use of confusing words to misguide a user from taking a particular action.

For instance, the use of confusing words in relation to receiving updates and alerts on product discounts in the future from the platform is prohibited.

12. Saas billing

It refers to the process of generating and collecting payments from consumers on a recurring basis in a software as a service (SaaS) business model in recurring subscriptions to get money from users as surreptitiously as possible.

13. Rogue Malwares

It refers to misleading the user into believing that there is a virus in their computer and persuading the user to pay for a malware removal tool that actually installs malware on their computer.

For example, if a pirated website/app promises to provide free content but actually contains embedded malware when the link is accessed or when consumers get access to the content on pirated platforms but keep getting pop-ups that have advertisements on them that are embedded with malware;

This list is not exhaustive and Central Consumer Protection Authority can add items from time to time to regulate the platforms, advertisers and sellers.

With 692 million internet users in India and e-commerce market size close to Us $ 100 billion, the guidelines are a welcome step to protect consumers. It will be interesting to see how the guidelines will be enforced given the market size and growth of niche regional online service providers.