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Draft Guidelines On Dark Patterns Will Impact Ease Of Doing Business, Cause Regulatory Overlaps: Asia Internet Coalition

The AIC, in its submission to the Department of Consumer Affairs, issued two primary concerns: Impact of the guidelines on ease of doing business in India, and potential overlapping of regulatory norms in context of legal multitude.

“The current formulation of the Draft Dark Pattern Guidelines will increase the regulatory burden on these online, e-commerce and digital advertising services. These additional regulatory compliances may stagnate the growth of India’s digital economy by having an adverse effect on the ease of doing business,” the Asia Internet Coalition (AIC), an industry association representing companies like Google, Amazon, Meta, Spotify, etc. said in its comments to India’s draft guidelines on regulation of dark patterns.

On September 8, the Department of Consumer Affairs (DoCA) had published draft guidelines for prevention and regulation of dark patterns. The department had sought public comments, suggestions and feedback on the proposed guidelines until October 5, 2023.

The AIC in its comments has highlighted two major concerns regarding the guidelines. One is the impact of the guidelines on ease of doing business in India for companies and the other, potential overlapping of regulatory norms in context of multiple laws that govern platforms.

Batting for self-regulation: The AIC has requested the DoCA to consider a self-regulatory framework as an initial step in combating dark patterns. Highlighting the evolving nature of technological workarounds used to deploy dark patterns, the industry body has said that self-regulation enables companies to periodically adopt their internal policies in response to such changes, and ensure accountability of platforms without additional compliance-burden.

The AIC also pointed out that self-regulation can allow platforms to regulate dark patterns in harmony with laws that online platforms already have to comply with. These include the IT Act 2000, Consumer Protection Act 2019 (CPA), and the Digital Personal Data Protection Act (DPDP). Further, the members have also asked the DoCA to consider extending obligations of establishing consumer grievance redressal mechanism to advertisers too, in addition to platforms. This, they say, would allow consumers to raise their grievances against advertisers too.

Key recommendations on definitions and guidelines

1. Title and commencement: The draft guidelines by the DoCA state that the guidelines may be called the Guidelines for Prevention and Regulation of Dark Patterns, 2023 and it shall come into force on the date of its publication in the Official Gazette.

Comments: The ACI has recommended that the DoCA must provide a buffer period between the publication and implementation of the guidelines Draft Dark Pattern Guidelines. This is because, regulatory hurdles for stakeholders will hinder timely compliance and attract penal provisions for non-compliance immediately upon enforcement of the regulation.

2. Definition of Commercial Gains: The DoCA’s draft defines “commercial gains” as a “monetary gain or financial advantage of any kind”. The ACI noted that the term has not been used anywhere in the guidelines and has suggested that it must be removed from the list of defined terms.

3. Definitions of Dark Patterns and Specified Dark Patterns: In addition to the definition of dark patterns, the DoCA has included a separate definition for “specified dark patterns”, which are essentially the dark patterns listed under Schedule I of the draft guidelines.

Dark patterns are defined as “practices or deceptive design patterns” that mislead or trick users into taking an action that’s against their original intent and in the process subvert customer autonomy or choice, in violation of consumer rights.

Comments: ACI is of the view that the definition of dark patterns is a “prescriptive and exclusive” one and that two definitions for interlinked terms are not required. Further, given the evolving nature of dark patterns, the ACI states that a prescriptive definition may soon become outdated. It recommended that “dark patterns” must be defined as, “the dark patterns listed and defined in Annexure 1 and any other dark pattern that the CCPA may include in Annexure 1 from time to time, where such dark pattern amounts to misleading advertisement or unfair trade practice or violation of consumer rights under the Act”. Hence, the definition of “specified dark patterns” must be removed.

4. Definition of platform: The draft guidelines state that a platform would under these guidelines shall have the same meaning as defined under the Consumer Protection (E-Commerce) Rules, 2020; that is “an online interface in the form of any software including a website or a part thereof and applications including mobile applications”.

Comments: According to the AIC, such a definition is broad which may also include intermediary platforms regulated under the IT Act and can avail safe harbour protection under Section 79 of the IT Act, including platforms that provide access to third party content for customers. It has noted that such exceptions are not specified under the dark pattern guidelines, which means that online intermediary platforms can be held responsible for the dark patterns that may be present in third party content and advertisements hosted by them, which is against the safe harbour protections available to intermediaries. ACI has recommended that the DoCA define platforms as, “an online interface which can include any website or a part thereof and applications, excluding intermediaries which comply with Section 79 of the Information Technology Act 2000 and the rules made thereunder”.

5. Definition of User: Under the draft guidelines, a user is defined as “any person who accesses or avails any computer resource of a platform”.

Comments: AIC observed that the CPA and associated rules define a consumer as “any user of such goods other than the person who buys such goods for consideration…”. In order to ensure uniformity with the CPA framework, the AIC has recommended that the DoCA substitute the term “user” with the term “consumer” as defined under the CPA and accordingly, remove the term “user”.

6. Defining Endorser:

The AIC has suggested defining the term “endorser” under the draft guidelines in order to tackle dark patterns associated with disguised advertisements, which include endorsements from influencers and celebrities, and hold endorses liable for their use of dark patterns. It has recommended that the definition of endorser should have same meaning as under the Misleading Ads Guidelines, that is any person who makes an endorsement of any goods or services in an advertisement through its opinions, experiences, beliefs, and findings.

7. Who does the guidelines apply to? The guidelines will apply to all platforms, that systematically offer goods or services in India, advertisers, and sellers.

Comments: The AIC has stated that the applicability clause must be revised to include endorsers too.

8. Prohibition against engaging in dark patterns: Currently, the draft guidelines state that no person, including platforms, should engage in any dark pattern.

Comments: According to AIC’s observations, such a blanket provision would raise serious concerns for online intermediaries, holding them responsible for dark patterns deployed through third party content, including where they merely provide hosting services. This will not only impact their safe harbour protections under Section 79 of the IT Act, but also place greater obligations on the part of intermediaries to pro-actively monitor and review content. This will in turn, cause censorship of legitimate content and affect freedom of expression on their platforms.

Reiterating the recommendation to revise the definition of platforms, the AIC has also stated that the DoCA add the following proviso:

“Provided that all platforms which is hosting third-party generated content and advertisements in accordance with Section 79 of the Information Technology Act 2000 and the rules made thereunder, shall not be held liable under this guideline.”

Regulatory overlap regarding “Specified Dark Patterns” under draft guidelines

The DoCA has listed out specific dark patterns which are termed as “Specified Dark patterns” in the draft guidelines. These include:

  1. False urgency
  2. Basket Sneaking
  3. Confirm Shaming
  4. Forced Action
  5. Subscription Trap
  6. Interface Interference
  7. Bait and Switch
  8. Drip pricing
  9. Disguised advertisement
  10. Nagging

Read more about the specified dark patterns in MediaNama’s summary of the draft guidelines for dark patterns.

In its comments, the ACI has pointed out that existing laws already account for regulation of dark patterns in India and that a separate regulatory framework would cause “unnecessary regulatory overlap”. The industry body has provided detailed explanation as to how each Specified Dark Pattern is adequately regulated under various laws and guidelines in India. Largely, these include:

  1. The Consumer Protection Act, 2019
  2. Consumer Protection (E-Commerce) Rules, 2020
  3. ASCI Dark Pattern Guidelines. Read MediaNama’s summary of the guidelines
  4. Misleading Ads Guidelines
  5. Digital Personal Data Protection Act, 2023

Additionally, the AIC refers to self-regulatory codes and companies’ internal policies related to specific dark patterns that aim to tackle practices that are detrimental to consumer interest. It has added that the upcoming Digital India Act (DIA) will also include provisions regulating dark patterns on the internet.

The AIC observed that the DoCA may rely upon existing laws to regulate dark patterns, but if a separate regulatory framework is required, then it must “medium-agnostic” and apply to both online and offline content and advertisements. The members noted that any additional regulation would lead to both regulatory overlap and increased compliance requirements and costs for advertisers, endorsers, platforms and sellers.

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Written By

Curious about privacy, surveillance developments and the intersection of technology with education, caste and welfare rights.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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