ASCI guidelines on deceptive design patterns in digital media advertisements

a.     

Consumer Protection Act, 2019

Consumer Protection Act, 2019 (Act) is the law protecting interests of consumers. Any online advertisement or user interface which is deceptive or manipulative, will be construed as undermining consumer interest and may be questioned as ‘unfair trade practice’, a term defined under Section 2(47) of the Act. Further, any advertisement or design pattern which manipulates user choice and adversely affects the right to make an informed choice would be infringing ‘consumer rights’ under Section 2(9) of the Act. Additionally, any deliberate concealment of important information in relation to a product or service, would fall within the ambit of ‘misleading advertisement’, a term defined under 2(28) of the Act.

b.     

Rules pertaining to misleading advertisements, informed consent and fair practices 

Ministry of Consumer Affairs has enacted the Consumer Protection (E-Commerce) Rules, 2020 (E-Commerce Rules) and the Consumer Protection (Direct Selling) Rules, 2021 (Direct Selling Rules) which set out duties of e-commerce entities and direct sellers respectively towards consumers. While E-Commerce Rules inter alia cast a duty that consent of a consumer can only be recorded through an explicit and affirmative action, and that no entity shall record consent automatically, including in the form of pre-ticked checkboxes, the Direct Selling Rules inter alia holds an entity accountable for any misleading, deceptive, or unfair trade practices in direct selling. Additionally, Central Consumer Protection Authority, a regulatory authority set up under the Act, has issued the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 (CCPA Guidelines) to prevent false or misleading advertisements and endorsements. The CCPA Guidelines inter alia specify conditions for a “non-misleading and a valid advertisement”, “free claims advertisement” and non-bait advertisements.

c.      

Advisory issued by the Department of Consumer Affairs

On 30 June 2023, the Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, issued an advisory urging online platforms to refrain from adopting ‘Dark Patterns’ (DCA Advisory). The Ministry also enlisted the following examples which are considered ‘Dark Patterns’:

       i.             

False Urgency: This tactic creates a sense of urgency or scarcity to pressure consumers into making a purchase or taking an action.

    ii.             

Basket Sneaking: Websites or apps use dark patterns to add additional products or services to the shopping cart without user consent.

  iii.             

Subscription Traps: This tactic makes it easy for consumers to sign up for a service but difficult for them to cancel it, often by hiding the cancellation option or requiring multiple steps.

  iv.             

Confirm Shaming: It involves guilt as a way to make consumers adhere. It criticizes or attack consumers for not conforming to a particular belief or viewpoint.

    v.             

Forced Action: This involves forcing consumers into taking an action they may not want to take, such as signing up for a service in order to access content.

  vi.             

Nagging: It refers to persistent, repetitive and annoyingly constant criticism, complaints, and requests for action.

vii.             

Interface Interference: This tactic involves making it difficult for consumers to take certain actions, such as cancelling a subscription or deleting an account.

viii.             

Bait and Switch: This involves advertising one product or service but delivering another, often of lower quality.

  ix.             

Hidden Costs: This tactic involves hiding additional costs from consumers until they are already committed to making a purchase.

     x.             

Disguised Ads: Disguised ads are advertisements that are designed to look like other types of content, such as news articles or user-generated content.