Dark Patterns: Casting a Shadow on IP Rights and The Need For Consumer Autonomy

Introduction

In the infinite internet landscape where there is unlimited user interface with various websites and applications, there lie subtle but powerful forces that influence online consumer behaviour. These “forces”, also known as dark patterns, are deceptive design patterns used by online platforms, e-commerce websites and social media platforms, to mislead internet users by making them do something which they may not have otherwise intended to do. Thereby, impairing or subverting consumer autonomy.

The concept of dark patterns is not a novel one. Essentially referring to any form of deceptive user interface, this phenomena has trickled into various segments of the digital world, specifically designed in a manner that allows websites, applications and other forms of servers to influence the decision making power of the unassuming consumer. Over the years, these dark patterns have become such an inextricable part of the internet that it is virtually impossible for one to maintain a safe distance. Thus, everything ranging from popular shopping applications to online magazines is simply fair game.

Intersection with IP

With the idea of boosting conversion rates, the unethical interactions associated with dark patterns not only negatively impact the overall experience while undermining user rights but also lead to the frustration of intellectual property rights with respect to trademarks, copyright as well as patents. Dark patterns often misuse branding, logos as well as images and related content in a deceptive manner in order to mislead the consumer into making purchases, subscriptions, etc. thus, leading to trademark infringement and exploitation of copyrighted content.

Further, false claims with respect to facts and features regarding products/services leads to spread of information aimed at misleading the customer into making purchases under false pretexts. Moreover, dark patterns often employ tactics involving the mimicry of design and trade dress including packaging design, software layouts, etc. Further, misapplication of domain names or other forms of cybersquatting is another consequence arising out of the use of dark patterns.

Dark patterns are often employed in order to falsely mislead consumers into purchasing misrepresented products / services. Misrepresentation of this kind includes claims of false association or endorsement as well as infringing on the intellectual property rights of the referenced entity. For instance, falsely associating charity logos or eco-friendly symbols with a product to give the impression of an associated cause or social responsibility.

Hence, dark patterns as a method of exploiting consumers, result in the undermining of the foundational principles of consumer law as well as intellectual property law. By misusing IP rights by distorting reality, dark patterns compromise consumer trust and abrade the integrity of IP rights. Thus, addressing this threefold intersection necessitates a focus on the moral framework, compliance with IP laws, and the protection of consumers from exploitative practices.

India: Current Legal Framework

Subscription traps, false urgency and click and bait are all deceptive means of misleading consumer autonomy and fall within the category of dark patterns. Concerned authorities may attempt to tackle the issue via consumer protection laws and regulations on data privacy and misleading advertisements.

In India, consumer protection and unfair trade practices are governed by the Consumer Protection Consumer Protection Act, 2019 which deals with protecting the interests of consumers, addressing unfair trade practices and misleading advertisements. It is also pertinent to note that the Consumer Protection (E- Commerce) Rules, 2020 deal with e-commerce entities indulging in unfair trade practices. Recently, the Central Consumer Protection Authority ("CCPA") in exercise of the powers conferred by Section 18 of the Consumer Protection Act, 2019 ("CPA"), has notified the Guidelines for Prevention and Regulation of Dark Patterns, 2023 ("Guidelines") on November 30, 2023.

As per section 2(e) of the Guidelines, the term “dark patterns” is defined as “ any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; designed to mislead or trick users to do something they originally did not intend or want to do; by subverting or impairing the consumer autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practice or violation of consumer rights”. Annexure 1 of the Guidelines goes on to include different types of activities which may fall within the category of “dark patterns.”

With the purpose of regulating the user experience across online platforms and minimizing the negative value attached thereof, the Guidelines illustrate the following practices, deemed as dark patterns:

Creating a false urgency through scarcity based marketing;
Basket sneaking products to online shopping carts without consent including charities;
Setting up subscriptions traps while making the opt-out process nearly impossible;
Confirm shaming in the form of negatively naming notification options for yes and no questions;
Forcing actions such as sign ups;
Persistent nagging or any form of repetitive requests or redirections to unrelated webpages for access;
Hindering performance of actions such as ‘unsubscribing’ through interface interference or redirection;
Misleading advertisements for low quality products in a manner of bait and switch;
Any form of hidden costs or undisclosed additional fees once the consumer has committed to the purchase;
Disguised advertisements through public figures without due disclosure of paid promotion.

Are the Guidelines Sufficient?

Legal practitioners and commentators may argue that the Guidelines do not strike a balance between the interests of the online intermediaries versus online consumers. It is being argued that “At present…the…Guidelines provide for a blanket provision requiring that no person including platforms should engage in any dark pattern. However, such a blanket provision would raise serious concerns for online intermediaries'' .

Despite the framework on consumer protection and unfair trade practices, dark patterns obscurely continue to persist via different forms and newer techniques. Therefore, there is a need for a comprehensive legal framework or specific legislation to deal with the issue. The Guidelines seem to have limited effect since through the definition of “dark patterns” itself, one can conclude that the same only deals with “consumers”. However, one may argue that there is a need for wider protection for “users” in general. Further, even though the CCPA has been granted a wide array of powers, the Guidelines do not seem to specifically grant any power to the CCPA to take action against activities involving dark patterns. Thus, the lack of any penal provisions imply the lack of power to combat such behavior.

On the other hand, ensuring the protection of rights of intermediaries under the Information Technology Act and Intermediary Rules, is another crucial element to consider. Drawing boundaries between acceptable and prohibited practices is essential in order to differentiate between dark patterns and other accepted forms of advertisements.

Furthermore, there is a need to understand the interface of dark patterns and intellectual property rights. Infringement of intellectual property rights such as trademarks, trade dress, designs and copyrights may occur simultaneously and therefore enforcement of laws to avoid such subtle forms of infringement is also crucial.

Finally, different circumstances require different treatments and therefore the Guidelines can simply provide guidelines for the treatments and interpretations of dark patterns however there is still a need for a comprehensive statutory provision that deals with the subject more in detail.

Other Jurisdictions

European Union: The European Union General Data Protection Regulation (EU GDPR) emphasizes transparency, fairness and accountability as well as informed, active consent. In 2019, the online booking and travel platform www.booking.com was ordered by the European Union Commission to avoid techniques involving time-pressure-inducing methods or cost concealment.

Further, The Digital Services Act, 2022 defines dark patterns as “practices that materially distort or impair, either on purpose or in effect, the ability of recipients of the service to make autonomous and informed choices or decisions. Those practices can be used to persuade the recipients of the service to engage in unwanted behaviors or into undesired decisions which have negative consequences for them.” The Act states that, “Providers of online platforms should therefore be prohibited from deceiving or nudging recipients of the service and from distorting or impairing the autonomy, decision-making, or choice of the recipients of the service via the structure, design or functionalities of an online interface or a part thereof.” A definition with such a broad spectrum seems more appropriate in the current scenario, even in India, considering the fast paced digital economy.

United States: In the United States, the Federal Trade Commission (FTC) has published a policy statement on dark patterns which warns companies against the use of such tactics that “trick or trap consumers into subscriptions”.

The California Consumer Privacy Act of 2018 gives consumers the right to know what personal information/data is collected about them, how it is used and shared. Further, the CCPA also prohibits the use of dark patterns and ensures that businesses should disclose information about their practices and whether they will be retaining any data, including contact information etc. Consumers must also be given the right to opt out of the provision at any time and businesses should make the cancellation procedure simple. As per the Act, a user interface may be considered a dark pattern if it is “substantially subverting or impairing user autonomy, decision making or choice”.

Conclusion

Dark patterns challenge the ethical foundations of user interface designs and compel us to question the equitable boundaries of the digital world. With the need for more transparent and user-centric practices, a comprehensive legal framework surrounding the issue is the need of the hour for digital India. A framework which balances consumer autonomy and ethical promotions and advertisements is needed. The current Guidelines can be said to be a step forward in the right direction however there is still room for more reform in this regard. It is also essential for the Guidelines to seamlessly integrate with other guidelines on e-commerce, data protection and advertising in order to fully operate upon the nuanced activities falling within the ambit of “dark patterns”.

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