On September 7, the Ministry of Consumer Affairs published the Draft Guidelines for Prevention and Regulation of Dark Patterns 2023, inviting comments from the public. Though the deadline for sharing these comments passed on October 5 and the government is presently working on finalizing the Rules, we received a guest post underlining the need to regulate the menace caused by dark patterns and its interaction with intellectual property rights. On this note, we are pleased to bring to you this guest post on dark patterns by Srijaa Grover and Yaggya Kapoor. Srijaa is a 4th year law student and Yaggya is a 5th year law student at Vivekananda Institute of Professional Studies, interested in exploring the vast scope of Intellectual Property Rights.
Dark Patterns Unmasked: Examining Their Influence on Digital Platforms and User Behaviour
Srijaa Grover and Yaggya Kapoor
Harry Brignull introduced the concept of “dark patterns” in 2010, describing them as deceptive tactics aimed at boosting conversion rates. These unethical UI/UX interactions mislead users to perform actions they don’t want, benefiting the company or platform. Dark patterns can take away users’ right to full information about their services and control over their browsing experience, affecting their overall experience.
Draft Guidelines for Prevention and Regulation of Dark Patterns 2023
The Department of Consumer Affairs (DoCA) recently provided “Draft Guidelines for Prevention and Regulation of Dark Patterns 2023.” The Centre previously sought comments on the guidelines for preventing and regulating “dark patterns” on the internet, especially in e-commerce platforms and subsequently issued a press release stating that they are going through them and will come up with the final guidelines soon.
The DoCA had illustrated 10 practices as dark patterns. They are:
1. False urgency is a marketing tactic that creates a false sense of scarcity to pressure consumers into making a purchase, often resulting in dark patterns, limited stock, and unexpected delivery.
2. Basket sneaking is when additional products or services are added to a shopping cart without the consumer explicitly adding them at the checkout page. Example- Donations to a charity or ancillary products.
3. Subscription trap is a strategy where a service or subscription is made easy to sign up for but difficult to unsubscribe. Example: When opt-out/ unsubscribing services are hidden or require multiple steps to arrive at the cancellation page.
4. Confirm shaming is the act of causing consumers to choose products or services they wouldn’t otherwise. These are often found in the notifications ‘unsubscribe’ section. Example: ‘No thanks, I hate saving money’
5. Forced action is when a company forces consumers to take an action they wouldn’t otherwise, such as signing up for ancillary services or products.
6. Nagging refers to persistent, repetitive, and constant requests for action, such as the ‘sign-up’ or ‘subscribe now’ box repeatedly opening on an unrelated webpage during various access steps.
7. Interface interference is a tactic that hinders consumers from performing actions like cancelling subscriptions or deleting accounts, such as redirecting them to another page while trying to cancel a pop-up advertisement.
8. Bait and switch is the practice of presenting consumers with high-quality advertisements, but delivering a lower-quality product instead, often due to contrasting images or descriptions.
9. Hidden costs are additional fees added during checkout, such as convenience, packaging, rain, or handling fees, when a consumer is already committed to making a purchase.
10. Disguised ads involve influencers and celebrities promoting products or services without disclosing their paid endorsements, which can be misleading to consumers. This includes endorsements of personal experiences without disclosing the fact that they are paid for it.
Challenges Under IP Law
Dark patterns are deceptive or manipulative design elements or techniques used in user interfaces to trick users into taking actions they may not want to take. These patterns can intersect with the trademark and other intellectual property (IP) in various ways, although it’s important to note that the use of dark patterns is unethical and often violates principles of fair use and consumer protection.
- Trademark infringement through misleading use of logos or branding: Dark patterns might involve the deceptive use of logos, brand names, or trademarks to mislead users into making purchases or signing up for services they didn’t intend to. This can lead to trademark infringement, as it involves using another entity’s intellectual property to deceive users. For example, a company uses a logo almost identical to a popular brand’s logo to mislead consumers into believing they are purchasing from a well-known brand.
- Misuse of copyrighted content: It also includes misuse of copyrighted material, such as using images or content without permission to mislead users. This violates copyright laws and may lead to legal actions for copyright infringement.
- False advertising and misleading representations: Dark patterns often involve misleading representations about products, services, or offers. These representations could include false claims about trademarked features, which could result in legal action for false advertising and trademark infringement. For example, a weight loss product claiming to help users lose 20 pounds in a week, which is an unrealistic and misleading representation of the product.
- Violation of design patents or trade dress: Dark patterns that mimic the design or layout of a competitor’s website or app in a misleading way might infringe on design patents or trade dress protections. For instance, when a person copies the unique packaging design of a popular energy drink, it confuses consumers and potentially infringes the trade dress.
- Cybersquatting and domain name abuse: Dark patterns may exploit users to register domain names similar to existing trademarks, which is a form of intellectual property abuse. This can deceive users and harm the reputation of the original trademark owner. For example, registering a domain that misspells a popular website’s name (e.g., “googgle.com”) to redirect traffic or create confusion.
- False association or endorsement: Dark patterns might mislead users into believing that a certain product or service is endorsed by a well-known brand or personality when it’s not. This misrepresentation can lead to claims of false association or endorsement, infringing on the intellectual property rights of the referenced entity. For example, falsely associating a charity logo with a product to give the impression that a portion of the product’s sales will go to the charity when it doesn’t.
Dark patterns undermine the foundational principles of intellectual property law, leveraging deception, confusion, and unfair advantage to deceive users. By misusing trademarks and engaging in comparative advertising that distorts reality, these patterns erode the integrity of IP rights and compromise consumer trust. Addressing this intersection necessitates a focus on ethical design, compliance with IP laws, and the protection of consumers from deceptive practices.
Impact on Media and Digital Platforms
The proposed guidelines could potentially expose dark patterns on digital platforms in India, potentially leading to severe fines and costs. Alongside the guidelines, the following international instances can also serve as a reminder for web service providers about the ills of such dark patterns. .
The Norwegian Consumer Council’s 2018 report revealed that Google, Facebook, and Microsoft used consent procedures that urged users to accept the lowest possible privacy settings through pre-selected settings, misleading language, hiding privacy-friendly options, and time pressure, potentially leading to millions of people unintentionally or unknowingly disabling or lowering privacy settings. In 2019, Booking.com, a popular EU travel booking platform, was ordered by the EU Commission to avoid certain design techniques, including time-pressure-inducing elements and cost concealment.
In 2017, the European Commission investigated Google’s design decisions for unfairly giving its “Google Shopping” product an advantage in its search engine, while in 2019, the Australian competition authority criticized Google for misleading user interface design, specifically the registration path for new users.
YouTube Kids, a colorful and simplified version of YouTube, is criticized for its autoplay feature, which keeps videos running without pause or interruption. Child safety advocates argue that this feature is a problem with the app and website. The Kids Internet Design and Safety (KIDS) Act, proposed last year, would ban the use of autoplay in kid-targeted apps. Experts at a recent Federal Trade Commission panel on dark patterns targeting children highlighted autoplay in children’s video apps as a concern, with some pointing specifically to YouTube. YouTube also earns from advertisers by inserting video ads and allowing longer ads. To avoid users being bothered by long ads, they created the “Skip Ad” button. YouTube’s dark pattern ensures users don’t always skip ads, making it less noticeable.
The Office of Attorney General of the District of Columbia (OAG) has filed a complaint against Google for violating consumer protection laws. The OAG accused Google of making it impossible for users to opt out of location tracking, deceiving them about privacy settings, and using “dark patterns” to undermine informed choices. Consequently, Google agreed to pay a $9,500,000 penalty, issue notifications, and comply with annual compliance reports. It was also reported that subsequent lawsuits were also filed by Attorney Generals of Texas, Indiana and Washington in their respective states.
A 2019 Princeton University report revealed that 11% of shopping websites used aggressive, misleading, deceptive, and potentially illegal patterns on their product pages, highlighting the prevalence of dark patterns in the industry. This highlights the need for ethical products and increased customer trust, as dark patterns exploit human psychology to persuade against personal interests.
Big companies like Google, YouTube, and Microsoft can incorporate ethical alternatives to dark patterns on digital platforms. Instead of Interface Interference, which is easy to sign up for but difficult to unsubscribe from, platforms can offer a retention package to encourage customer retention. Nagging, which involves persistent, repetitive requests for action, can be avoided by showing pop-ups at the right or left corner. Instead of Basket Sneaking, platforms can present additional options as suggestions on the shopping cart, allowing consumers to add relevant products if missed. Privacy deception should be avoided, and offers and interactions should be transparent about price and key benefits. By considering these alternatives, companies can avoid dark patterns activities and maintain customer satisfaction.