By Titiksha Vashist, Shyam Krishnakumar, Dhanyashri Kamalakannan - The Pranava Institute and Monami Dasgupta, Vinith Kurian - D91 Labs
Introduction: Dark Patterns and Consumer Protection
These comments have been prepared in response to the public call for comments issued by The Department of Consumer Affairs, Government of India on Draft Guidelines for Prevention and Regulation of Dark Patterns. The guidelines are a welcome move by the Indian government at a time when dark patterns also referred to as deceptive patterns are affecting all sectors of the digital economy, and making Indian consumers vulnerable online. This move is also in alignment with the larger global movement from governments across countries to regulate deceptive design practices and enable a safer and more trustworthy internet.
Regulating deceptive design is central to ensuring that India’s most vulnerable users online are not harmed or tricked, and can safely avail of public utilities, have access to government services, and participate in the digital economy. This move is crucial to ensure consumer protection for the last digital user and is in line with the vision for India’s digital economy to be beneficial for digital nagriks. Regulating dark patterns will also enable the empowerment of digital citizens, by ensuring that the goals of the Digital India programme are met. Finally, since dark patterns impact people in tier-2 and tier-3 areas disproportionately, regulation will ensure antyodaya for the last digital user in line with the Prime Minister’s vision for an inclusive Digital India.
The regulation of dark patterns needs to be in line with the larger principles that India sees as the foundations of its digital economy. Focusing on the consumer protection standpoint, it means that ensuring online platforms respect the rights of users including the right to privacy, are accessible and transparent, and enable information access while allowing consumers to make safe and informed decisions in the online marketplace without manipulation.
Informed by Pranava Institute and D91 Labs’ research on Deceptive Design
The Pranava Institute has been working on a multi-year project to study the harms and challenges posed by deceptive design in the Indian context from 2021 onwards. The comments laid out in this document, therefore, are the outcomes of our research from the Design Beyond Deception project. Our research process has included in-depth interviews with experts from fields of privacy, digital economy, human-computer interaction, design, and other related fields. We have also held three closed-door consultations with stakeholder groups including designers, civil society and public policy professionals, academics, and industry. These efforts have resulted in a research series on deceptive design and a manual for practitioners suitable for those working at the application level. D91 Labs has been working on the nature and harms of deceptive design in India’s rapidly growing fintech sector and has published an in-depth audit of deceptive design patterns found in India’s fintech applications.
The comments on the draft guidelines are informed by the expert interviews, stakeholder consultations, and study conducted by Pranava Institute and the research on India’s fintech ecosystem conducted by D91 labs.
Policy Recommendations
Here are some of the key points from the policy recommendations: (Download the full report below)
Comments on the list of dark patterns specified in the guidelines
The deceptive patterns listed in draft guidelines presented by the Department of Consumer Affairs and Advertising Standards Council of India are specific and non-exhaustive. Although most of the broader categories of deceptive patterns are covered, we recommend that the guidelines consider incorporating specific sub-categories of deceptive patterns as well.
Adopting a consumer harms-centred regulatory approach to tackle rapidly evolving deceptive design patterns
Academics have found the sheer number and range of deceptive design patterns are growing and evolving beyond the accepted taxonomies and categories of deceptive design. With the advent of generative AI solutions for designing user interfaces, the problem is likely to grow exponentially. Since banning a type of pattern may not effectively remove the harm caused by it (since new patterns can cause the same harm and types of dark patterns are proliferating rapidly), research and emerging global regulatory approaches suggest that approaching regulation from a harm-centered approach will be more effective. A principles-based approach which serves as the foundation on which India’s digital economy and its rules rest, can be reflected in the regulation on deceptive design. These principles, including privacy, enabling access and inclusion, and fair competition and transparency need to be central in digital regulations, including those on deceptive design.
Each deceptive pattern can be mapped to one or more harms that it may cause. Deceptive patterns often lead to harm such as invasion of privacy, intended financial loss, psychological burden, loss of societal reputation, and erosion of trust in the market. While creating a list of harms caused by deceptive patterns, we could also consider ranking them in their order of magnitude which will help the industry to tackle and reduce the prevalence of the patterns accordingly.
Harms caused by deceptive patterns would include -
Financial harm
Privacy harm
Reputational harm
Loss of trust in the market
Psychological detriment and time loss
Public reporting tools and studies can deepen evidence for consumer harms emerging from dark patterns
Global precedents by consumer protection agencies show that evidence collection can create a substantial impact on ensuring other sectoral regulators take proactive measures to prevent deceptive design-based harms. Therefore the regulatory body can consider setting up public reporting tools and commission studies to deepen the understanding of specific harms of deceptive design in the Indian context that could lead to proactive measures under a whole-of-government approach for consumer protection.
Voluntary design audits for significant platforms and significant intermediaries
In the case of significant platforms and intermediaries, we recommend annual design audits by independent third-party experts to identify the use of deceptive design practices and assess the ethical considerations integrated into digital platforms, along the lines of data audits recommended in the Digital Data Protection Bill. These audits could be initially made on a voluntary Code of Conduct basis or through industry self-regulation. In the medium term, mandatory annual design audits could also be considered for significant intermediaries.
Significant Platforms and Intermediaries can be mandated to conduct annual awareness and sensitization measures to design without deception
The guidelines can mandate that significant platforms and intermediaries, as defined by their user base, the volume of transactions, data collected, systemic importance and other factors, across various digital sectors including fintech, e-commerce, social media and tech to conduct annual measures to educate product teams on the impacts of deceptive design on consumers and conduct decisions on designing beyond deception. These are crucial since product teams play a crucial role in creating digital interfaces, setting metrics to evaluate success, and designing the UI/UX which users interface with. The government can consider certifications for industry professionals on the theme of responsible and ethical design that goes beyond deception.
Measures to incentivize the use of Ethical Design practices
When the evolving nature of the problem, preventing and regulating deceptive design practices may not always be an enforceable position. In this regard, it is suggested to include mechanisms that incentivize employing ethical design practices. To encourage ethical design practices, similar to how car crash safety ratings have made safety features more desirable for both consumers and car manufacturers, various mechanisms can be implemented. These measures can include both market-driven incentives and formal regulatory frameworks.
Need for a whole-of-government approach led by the Consumer Ministry to tackle sector-specific challenges
Experiments in innovation and regulation across the world have shown that dark patterns need to be regulated by multiple bodies which seek to protect different aspects of a citizen’s online experience. Deceptive design is pervasive across sectors of the digital economy.
While the Consumer Protection Ministry has taken a welcome lead in regulating deceptive design practices, the problem requires a whole-of-government approach with interventions from sector-specific regulators to create codes and guidelines that prevent consumer harms which are most important (e.g. Financial loss in the case of fintech applications). Similarly, data protection and privacy issues resulting from deception need to be addressed by India’s forthcoming Data Protection Authority (DPA) as per the Digital Personal Data Protection Bill, 2023. Sector-specific regulators can also levy fines and penalties for large players who set the norms for the UI/UX in their domains. This will increase the cost of using deceptive design, and ensure that players adopt consumer-focussed, ethical practices.
This requires multiple regulatory bodies to develop an approach that regulates deceptive design at multiple levels in order to safeguard the interests of citizens, as well as use regulatory tools to ensure that the digital economy is based on fairness, privacy, and transparency.
Download the full report here: