Black and white of Dark Patterns

LAST month, the Union Ministry of Consumer Affairs took two concrete steps to get rid of ‘Dark Patterns’ or deceptive online user interfaces. These deploy behavioural psychology, particularly consumers’ cognitive biases, to trick them into unintended actions, including online purchases, that eventually work to their detriment.While one step was an advisory asking all digital platforms to audit their user interfaces for Dark Patterns and remove them within three months, the other was the constitution of an inter-ministerial, inter-sectoral working group to ensure comprehensive measures against Dark Patterns across sectors, instead of isolated actions by individual ministries and sector regulators. In fact, the constitution of the Joint Working Group by the ministry also sends out a signal that eliminating Dark Patterns on online platforms ought to be a collaborative effort, requiring all regulators to share the responsibility.The trigger for the crackdown on Dark Patterns was the continued deployment of these unethical practices by digital platforms, despite a ban imposed by the ministry in November 2023 through the Guidelines on Dark Patterns. These described 13 different kinds of user interfaces designed to exploit consumers. In fact, consumer complaints and surveys indicated an increase in such malpractices across sectors, ranging from e-commerce marketplaces and quick commerce to insurance, banking, travel, education, telecom, app-based cab services, food delivery and OTT platforms.The necessity to eradicate Dark Patterns also stemmed from the fact that digital platforms are used extensively in India, but the majority of users are still ignorant about these malpractices and fall prey to them. The use of unethical user interfaces in digital lending apps, for example, is pushing consumers into taking short-term loans with high interest rates.Even banking apps are known to have Dark Patterns that prompt consumers into making choices that are advantageous to the bank, but not to the consumer.Deceptive patterns on gaming apps are also leading to severe addiction to gaming among the younger generation. Use of pre-checked boxes to make the consumer spend on unwanted goods, services, subscriptions, software and even charities without the explicit consent of the consumer is a glaring example of a Dark Pattern.After the crackdown by regulators on airlines and online travel portals for using ‘pre-ticked boxes’ to sell domestic travel insurance surreptitiously to consumers, many have changed their user experience design to eliminate pre-ticked boxes. However, going by consumer complaints, some of them have come up with alternate designs that serve the same purpose — selling unwanted travel insurance along with tickets.First, they instill a sense of urgency by constantly announcing that only a limited number of seats are left on the flight that you wish to take, and then when you are hurriedly trying to complete the transaction, the interface will draw your attention to two travel insurance products and ‘recommend’ the costlier one. The software is designed to make it easy to say ‘yes’ and extremely difficult to say ‘no’ (you need to scroll down and search for that option).With the fear of losing seats on the preferred flight looming large, consumers are more likely to take the easier and quicker option. I use this example to highlight how one Dark Pattern replaces another on these sites!The effects of Dark Patterns on consumers have been analysed in several research papers. First, they violate the consumer’s right to informed choice, resulting in unintended spending, causing financial loss. Second, they prompt consumers into sharing much more personal data than necessary, leading to unwanted targeted advertising and profiling. Third, they promote the processing of user data across services without the consumers’ knowledge or consent, affecting their privacy.There are also other adverse effects such as addiction to infinite scrolling, shopping and gaming. Research has also revealed the psychological effects of Dark Patterns — leading to mental disturbance and distress.The extent of use of Dark Patterns can be gauged from a comprehensive survey conducted by Local Circles spanning 228 platforms in India. The survey revealed that as many as seven Dark Patterns were apparent in sectors such as edtech, online banking, app-based taxis, OTTs, e-commerce, food deliveries, quick commerce, inventory commerce, apps and software, medicine, health, airlines, movie and entertainment ticketing and online payments.Four to six Dark Patterns were found on mobile telecom, online gaming, digital lending, voice assistants, online insurance and recruitment/professional networking platforms. Platforms such as online train ticketing, car rental, music streaming, mobile devices and online financial trading had one to three Dark Patterns.The coming months will be a real test of the regulator’s capacity to enforce the Guidelines. The very fact that the digital ecosystem has more or less ignored the Guidelines so far calls for deterrent action against violators, including steep penalties. It is also important to hold user interface designers as well as top officials of online platforms personally accountable for Dark Patterns.Going by the all-pervasive nature of Dark Patterns the world over today, they are not going to go away so easily and not just the consumer protection regulator, but all other sector regulators need to constantly update themselves on the new tricks of the trade. They must do all it takes to weed them out from the digital ecosystem.— The writer is a consumer rights and safety expert

Black and white of Dark Patterns

Pushpa Girimaji

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