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How Will Dark Patterns be Identified and Will Platforms Have to Actively Monitor Them?

In an interview, Advertising Standards Council of India (ASCI) CEO and General Secretary Manisha Kapoor discusses regulations for dark patterns, ethical interface designs, self-regulation for platforms, compliance issues, and much more.

“…the problem needs to be stemmed at its root, which is saying that if you [platforms] have designs that are more transparent, if you have the choice architecture, which is fairer to consumers, then actually these challenges [related to dark patterns] would not arise in the first place. We should look for platforms and e-commerce sites, et cetera, to actually build that into their design. That is the long-term solution,” Manisha Kapoor, CEO and Secretary General of the Advertising Standards Council of India (ASCI), told MediaNama while speaking about the issues that can arise while implementing the guidelines for regulating dark patterns.

India’s Central Consumer Protection Authority notified the guidelines for prevention and regulation of dark patterns on November 30, 2023. The ASCI was part of the task force formed by the Department of Consumer Affairs for determining regulatory ways to tackle dark patterns. Additionally, in June 2023, ASCI had adopted new guidelines for ‘Online Deceptive Design Patterns in Advertising’ to address problems caused by dark patterns in online advertising.

In this interview Kapoor talked about the practical difficulties in identifying dark patterns across thousands of online ecommerce websites and advertisements, and offered clarification on various enforcement-related questions.

Watch the full interview here:

While we encourage you to watch the full video, here are some note-worthy quotes from the interview:

On regulatory overlaps:

The Internet Freedom Foundation (IFF) and Asia Internet Coalition in response to the DoCA’s draft guidelines had pointed out that instances of consumer deception are spread across different sectors, which may lead to overlaps in regulation. Addressing concerns regarding regulatory overlaps and its impact on enforcement of the guidelines, Kapoor said:

“There are different parts of regulation and laws that do have overlaps. For example, misleading ads are there and Department of Consumer Affairs looks at it, but the misleading ad is about a health issue, then even the health department will get involved. There is always going to be an overlap amongst different regulators, and each of them has the mechanism. And we will have different kinds of remedies for different kinds of complaints and the nature of the complaint. The overlaps are to be expected, and there is really nothing wrong with them. It gives the consumers also multiple options in terms of where they could go for complaint-free based on them.”

Why ethical User Interface (UI)/User Experience (UX) design is paramount:

Businesses also conduct A/B testing, wherein two versions of the same webpage or element of a page can be used for assessing what works best on their website interface. Similarly, advertising is also done via multiple platforms and in different forms on the internet and most of these are again experimental in many cases. This raises a question as to how will such practices be monitored and what kind of checks and balances designers will have to adhere to. According to Kapoor, platform-forward technology, and ethical UI/UX design is the primary resolution to this issue. An interface design should enable consumers to make an informed choice based on the correct information provided to them.

She explained, “You can have 10 different ads and test them in 10 different ways as long as all 10 of them are honest, it doesn’t matter. The question is, are some of them dishonest and some of them honest? And that’s the minimum standard that needs to be adhered to. You can do 2,000 tests, it doesn’t matter as long as all of them are ethical, all of them are above board. None of them compromise the rights of the consumers. The idea of ethical UI/UX design, I think, is at the centre of this discussion. And what is really the intention of that platform? Is it to get consumers through unethical means? Then you need to design your interfaces in a way that allow the consumer to make informed choices.”

Is self-regulation an option for platforms?

The AIC has suggested that a self-regulatory framework would work as an initial step in combating dark patterns. Highlighting the evolving nature of technological workarounds used to deploy dark patterns, the industry body had 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. If a lot of it depends on the platforms to monitor deceptive practices, MediaNama asked Kapoor if self-regulation was a better option than having additional guidelines.

Kapoor replied, “Because there’s a regulation, it does not mean that you cannot self-regulate. It just means that you yourself decide what your boundaries are. If you have decided what your boundaries are, and in principle, they are similar to the boundaries that the law has laid down, you can for yourself decide the standards, and they just need to make sure that they are not below industry standards or the standards of law. So, regulation does not mean that self-regulation does not exist or has no role.”

On penalties for non-compliance:

The guidelines do not mention any penalties for non-compliance. When asked what will happen if platforms do not comply, Kapoor clarified, “The penalties are laid down under the Consumer Protection Act already. So, there are no separate penalties for this. Whatever are the penalties that have been laid out under the Act will be applicable to all misleading ads and unfair trade practises under which they have looked at this issue.”

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Written By

Curious about the intersection of technology with education, caste and welfare rights. For story tips, please feel free to reach out at sarasvati@medianama.com

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