Dark patterns and consumer protection

What are dark patterns

The term ‘dark patterns’, coined by Harry Brignull in 2010, simply means a user interface is a user interface that has been crafted to trick or manipulate users into making choices that are detrimental to their interest. 

Kinds of dark patterns

Dark patterns encompass a wide range of manipulative practices such as drip pricing, disguised advertising, bait and click, choice manipulation, false urgency and privacy concerns. The increasing prevalence of these deceptive practices infringe on consumer rights.

• Drip pricing :  Only a part of a product’s price is disclosed to potential buyers including elements that have to be borne by almost all customers, for  example tax. Accordingly, the total price is only revealed at the very end of the buying process, thereby creating ambiguity around the final price as well as preventing easy price comparisons. Hence these sort of representations may be said to be misleading. Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers.
• Bait and Switch : When an ad directly or indirectly implies one outcome based on the consumer's action, but instead serves an alternative outcome, the same would be considered misleading. Examples include
  • A consumer may select a product offered at a certain price but is thereafter only able to access products at a higher price
  • Offering an attractive product and later revealing that it is out of stock, offering an alternative product.
  • Changing the meaning of key symbols to mean the opposite. For example an X on the top right corner, instead of closing an app, may open up the app, or the action that the user was trying to avoid. The X has always meant “close”. But in the interaction, the X means "accept/ proceed". 
• False Urgency : Stating or implying that quantities of a particular product are more limited than they actually are.
• Disguised Advertising : An advertisement that is of a similar format as editorial or organic content must clearly disclose that it is an ad. Examples could be influencer posts, paid reviews, and ads placed in a manner to appear like content.
• Privacy deception : Interfaces that trick users into sharing more information than they intended to. Users may give up this information unknowingly or through practices that obscure or delay the option to opt out of sharing their private information. 
• Confirm-shaming : Confirm-shaming uses shame to drive users to act. For example, when websites use words that induce shame or guilt to describe the options that consumers wish to exercise, such as declining to sign up for newsletters, or make a donation etc.
• Checkbox Treachery : Obfuscatory checkboxes are probably the most famous and most common examples of dark patterns. These are usually in the form of opt-in or opt-out checkboxes that businesses use to give customers notional control over how their contact data is used.
• Nagging : Repeatedly asking users for the same thing. There is often no option to make it stop, with the hope of eventually breaking users and getting
  them to agree to sharing data or agreeing to unfair terms. This is commonly seen when websites asking you to download their app, or platforms ask you to give them your phone number or sign up to their services.
• Sneak-in Basket : When consumers purchase something, additional products are added into the basket of the consumer, without their knowledge. For
  example, buying insurance with airline tickets, or making a donation to a charitable cause while checking out of an e-commerce site.
• Roach model : A roach motel is a service that is easy to sign up for but difficult to cancel. An example is an online subscription that can only be canceled by phone.
• Interface Interference : Interface interference is designing an interface to prioritize or preselect certain actions. An example of this is pre-selecting an option to be contacted by the company, which requires customers to recognize that they need to deselect it. Sometimes these preselections are hidden in a drop-down menu. 
• Forced action : Forced action is similar to interface interference, except customers don’t get a choice in the matter. For example, making a customer submit an email address in order to use a website.

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

Ordinary consumers are up against billions of dollars of investments that are manipulating their choices in ways unknown to them. 

Potential solutions

Dark patterns are a complex issue that need close cooperation between different stakeholders. A key challenge is that it is often difficult to differentiate between persuasive tactics usually deployed by advertising and manipulative tactics that form dark patterns. 

Honest advertisers and platforms must step up to improve their transparency and ensure that consumers are well informed – but not overwhelmed – to make  their decisions. Most importantly, internal company policies around UX design must ensure that stakeholder value is not built by compromising consumer value.

While it is important to increase consumer awareness around dark patterns, the rapidly evolving nature of such patterns is unlikely sufficiently protect consumers.
Voluntary disclosure and transparency measures can provide strong support to regulation to keep consumers safe.

Some of the regulatory measures taken in India include 

• Department of Consumer Affairs summoned cab and two-wheeler aggregators to come clean on their charges and algorithms, as consumer angst and
  frustration with these services rose to alarming levels. The Department also formed a consultation group to address the issue of fake online reviews. 
• The Advertising Standards Council of India (ASCI), has been addressing such issues through its existing code on misleading ads. The ASCI code applies
  across media, including online advertising (including companies’ own websites, pages and handles). Both the Consumer Protection Act 2019
  and the ASCI code require ads not to mislead consumers. And indeed, many dark patterns end up doing so and violate ASCI's code on misleading ads which states, inter alia, that "Advertisements shall not be so framed as to abuse the trust of consumers, or exploit their lack of experience or knowledge".  The ASCI code is proposed to be extended to reflect the following advertising-related concerns around dark patterns.

Regulators and self-regulators across the globe are stepping up their monitoring game with investments in artificial intelligence that can detect dark patterns
and manipulative practices. While legislation and rules in this area will continue to evolve, a culture of consumer respect and meaningful engagement is what is most needed from organizations to keep the online experience kosher. 

Source : ASCI's Dark Patterns: The new threat to consumer protection - discussion document 

Related resources

1. OECD publication - Dark Commercial Patterns
2. ASCI Code
3. ASCI advertising Guidelines For The Education Sector