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E-commerce ‘'Dark Patterns'’ - An Unfair Trade Practice

Thu, 13/04/2023 - 15:10

Over the past few decades, the e-commerce sector has evolved significantly. Consumers are making more online purchases than ever before. To battle growing competition,  e-commerce retailers are modifying their online platforms such that it attracts customers, grabs their attention and nudges them towards completing the purchase by well designed user interfaces that influence users’ behaviour. It is not unusual for customers to add products to an e-com shopping cart, only to abandon the cart and move on to another website. This is potentially a loss to the seller, who then resorts to explicit, deceitful design choices that manipulate the user into proceeding with the purchase, or making choices that they might not have otherwise done (Gray, Kou, Battles, Hoggatt and Toombs 2018). These are called 'dark patterns'. ‘Dark patterns' are used to manipulate customers into taking action, such as with triggering notifications about the scarcity of a product, urgency of sale, or social desirability of the product they might show interest in. 

Gray et al. (2018) defines dark patterns as explicit, deceptive design choices that are created by understanding human psychology and manipulating it in a way that are not in the user’s best interest. 

Mathur et al. (2019) emphasise that dark patterns steer, coerce, or deceive the user into making decisions which they might not have otherwise done. While some customers might be coerced into spending money in response to these coercive designs, in other customers it might elicit responses of slight annoyance to frustrations at having to give up  personal data.

Section 2 (47) of Consumer Protection Act (CPA), 2019 defines Unfair Trade Practices as:

“A trade practice which, to promote the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice”. Thus the term "unfair trade practices" describes dishonest, fraudulent, or unethical commercial practices. Misrepresentation, false promotion or representation of an item or service, fake free-gift or reward offers, deceptive pricing, and noncompliance with manufacturing standards are examples of unfair commercial practices. Since dark patterns are a form of misrepresentation and false promotion, these do come under the purview of the CPA.

Dark patterns typically use messages of the following types: 

  1. Urgency 

A customer is continuously notified of the ending of a deal or sale, especially of those products that are of interest to them. There are two types of urgency patterns: countdown timers and limited time notifications. Often, the offer continues to be valid even after the time has run out.  

  1. Misdirection

Misdirections are broadly caused by visual, language, and emotional manipulations that include ‘Confirmshaming’ and ‘Trick Questions’. Confirmshaming is a dark pattern that pushes visitors to sign up or register by shaming them if they do not. In the image below the first part is visually bold and meant to capture the user’s attention. The second part is designed with subtle colours and with a tone that implies the visitor is making a foolish decision by not signing up.  


An example of misdirection | A recent pop-up from Shopify

  1. Social proof

A dark pattern where a customer is goaded into buying through real or fake messages that another customer has just bought the same product. 

  1. Scarcity

This notification of limited availability and high demand pushes the user into purchasing a product. These pop up messages are also deceptive in many cases showing randomly generated low numbers of stock or out of stock messages. Advertising an appealing product and then revealing that it is out of stock can create disappointment in a buyer. The seller then quickly offers an alternative product.

  1. Obstruction

This pattern is similar to Brignull’s “Roach motel”- pattern. The website design makes signing up for newsletters, subscriptions and memberships easy, but cancelling them unnecessarily hard. While subscription might just be a click, cancellation may require an email or a phone call meaning more effort on the part of the customer. 

  1. Forced action

The user is forced to sign up and share their personal data (for example, their credit card details), before having access to all of its services. When the customer forgets to cancel at the end of the free trial period, they are automatically charged for their subscription. Sometimes cancelling the subscription is also made unnecessarily confusing and tedious.

  1. Hidden costs

Adding a product to the cart at a reasonable price shown in the site, but when finally reaching the last step of checking out, the price shown is a lot more than the customer began with, with charges of shipping and taxes hidden at the beginning.

  1. Disguised advertising

Advertisements that are disguised as other kinds of content or navigation, to attract customers. Influencer posts, sponsored reviews, and advertising as content are all examples of disguised advertising.

The Advertising Standards Council of India (ASCI) 

The Advertising Standards Council of India was founded in the year 1985 under Section 25 of the Companies Act, 1956, to regulate advertising and thus protect consumer interest. ASCI is a self regulatory and a non-profit company that plays an important role in protecting consumers from deceptive advertisements.

According to an ASCI analysis, disguised dark pattern advertising, supported by influencers, accounted for 29% of all ads processed in 2021-22. Some industries that especially encourage 'dark patterns' to attract clients include cryptocurrency, fashion, e-commerce, personal care, food & beverage, and banking.

Not all 'dark patterns' are related to advertising and hence may fall outside of ASCI's purview; yet, they may constitute unfair trade practices that jeopardise consumer interests. ASCI aims that in the near future, regulators will handle such 'dark patterns' as they deem fit in the interest of consumer protection.

To broaden the scope of the ASCI code's applicability to 'dark patterns', the self-regulatory organisation has also recommended alternatives to 'dark patterns' for UX (User Experience) designers and companies proposed by UX expert Michael Craig. The ASCI has sought to compel firms to modulate their online adverts, which will eventually aid in the creation of a fair online environment for consumer navigation.

What are the worldwide regulations in place?

  1. The European Data Protection Board (EDPB) has released recommendations for 'dark patterns' on social media platform interfaces. Several issues have been highlighted, such as overburdening customers with demands to disclose more data, structuring the interface in such a manner that users fail to consider data protection elements of a decision, and concealing information or privacy options.  To regulate these issues around dark patterns, the EU has multiple regulations that can be used as a tool to protect consumers; and several other Acts have been proposed for the same purpose.  
  2. According to a new Federal Trade Commission (FTC) investigation by an independent agency of the US government, complex 'dark patterns', meant to deceive and trap customers are on the rise. The research details dark pattern methods such as disguising adverts as independent content, making it impossible for users to cancel subscriptions or payments, and deceiving them into revealing their data. The FTC's attempts to combat the use of 'dark patterns' in the marketplace are highlighted in the study. It reaffirms the agency's commitment to take action against consumer deception practices. There are also a number of recently introduced laws that define and restrict the use of dark patterns. 

Why do customers need to be aware of 'dark patterns'?

The human psyche plays an important role in explaining why 'dark patterns' work, even if users are aware of them, on some level at least. One important aspect that influences and keeps the customer on track with the evolving e-commerce purchase is social norms. Social norm is defined as a standard of behaviour based on the shared beliefs of a group and of how individuals should behave in different situations (Fehr and Fischbacher 2004). For example, teens and young adults may experience social pressure to join social media sites and publish specific types of content, as their peers do. They feel more accepted in their group if they comply with this practice. Not living up to these standards could result in social exclusion with serious  consequences such as anxiety, loneliness, anger, low self-esteem, and reduced well-being and belief in a meaningful existence for the teen/young adult. (This might, in fact, be a universal phenomenon and not just one applicable to teens and young adults.) Because of such negative consequences such as social exclusion, humans have subconscious tendencies to conform to group norms. We need informed consumers to resist the need to adhere to societal norms, which otherwise might ultimately lead them to fall prey to dark patterns, while we await strengthened legislation that expressly addresses the issue of dark patterns in India.

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