top of page
Search

Diving into Concerns: CCPA's Dark Patterns Guidelines Critique

Abstract:

On November 30, 2023, the Central Consumer Protection Authority (CCPA) notified the Guidelines for Prevention and Regulation of Dark Patterns under Section 18 of the Consumer Protection Act of 2019. This was a part of the Government’s initiative to harmonize its development plans with the global standards on control of dark patterns. These Guidelines describe 13 practices that are considered to be Dark Patterns while the original draft for these Guidelines described only 4 of them. Dark patterns are design patterns or practices that are deceptive and are mainly intended to mislead and defraud users into doing certain things that they would otherwise wish to avoid. These patterns are based on the history of user interactions and experiences and therefore, after examining consumer habits the websites find ways in which the users are likely to be deceived. In the technologically advanced world of today, there is a plethora of e-commerce websites with millions of online users. Due to this large user engagement, sellers and organizations offering services on these websites are likely to deceive consumers, severely impairing their ability to make decisions and hampering their autonomy and rights.

Unveiling the Motivations Behind the Use of Dark Patterns: Why Do Companies Engage in It?

Firstly, by using deceptive tactics and strategies, companies can make users agree to certain Terms and conditions or click certain anonymous links that are not directly intended by the users to gain huge monetary benefits. This results in increased revenue and profits and therefore acceleration of the financial growth of their business.

Secondly, dark patterns help companies find a way into consumer insights including their behaviors, preferences, buying patterns, and online activities and thus help to gather extensive user data which in turn provides the necessary information to prepare a framework for advertising and marketing strategies.

Finally, it helps in attention-grabbing, often by the use of manipulative prompts or flashy visuals to divert users towards specific content, promotions, or actions that serve the objectives of the company and are not intended by the users.


Shortcomings of The Guidelines on Dark Patterns

1. Applicability:

The guidelines apply to:

-- Platforms that consistently offer goods or services in India, including foreign ones

-- Advertisers, i.e., individuals involved in creating, producing, and releasing ads either independently or through delegated services, promote the sale of their goods or services.

-- Sellers and service providers, meaning individuals engaged in the business of importing, selling, distributing, or marketing products or services for commercial objectives.

The main drawback of this section is that it is too vague and uncertain. The guidelines aim to apply to both advertisers and sellers. However, the operational restrictions are specified for “persons (including platforms).”Due to this wording, potential confusion is created about the entities to which these guidelines truly pertain. The use of the term “persons,” especially alongside the broad category of “platforms,” raises questions about the scope and clarity of the regulatory framework. Also, as a result of this definition, advertising agencies or endorsers offering assistance for these advertisements might not be covered by the Guidelines. Therefore, further clarification is needed to determine the intended applicability of these guidelines and avoid potential confusion during implementation.

 

Image Source: http://surl.li/pawpd


2. Undefined Penalty Thresholds:

While the Consumer Protection Act of 2019 outlines penalties for dark patterns mentioned in Annexure 1, the guidelines fail to provide clarity on the threshold for these penalties. Non-compliance with the Act's directions can result in imprisonment for up to six months, a fine of up to Rs 20 lakh, or both. However, the guidelines do not specify the criteria for determining when such severe penalties are applicable. This lack of specificity could lead to situations where businesses unintentionally violate regulations without clear guidance on the severity of consequences.


3. Unclear definitions 

The Guidelines define Dark Patterns as, “any practices or deceptive design pattern using user interface or user experience interactions on any platform that is 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 a misleading advertisement or unfair trade practice or violation of consumer rights”

 

Concerns are raised about the inclusion of “misleading advertisement” and “violation of consumer rights” in the definition of dark patterns which make room for added ambiguity and complexity. These additional elements may hinder the ability to clearly distinguish between acceptable marketing practices and deceptive strategies. For instance, some common business practices, like requiring payment details for free subscriptions, might be unintentionally covered under certain definitions, potentially hindering legitimate market practices.

 

In my opinion, a simpler definition that focuses solely on the intent to mislead users would be more effective. This kind of definition would highlight the core issue of dark patterns—deliberately designing interfaces or experiences to trick users into taking actions they didn't intend or want to take.


4. Jeopardizing Right to Privacy: 

-- The existing guidelines lack explicit provisions for regulating interfaces or designs responsible for personal data collection, creating a potential gap in safeguarding consumer privacy. Despite the recent enactment of the Digital Personal Data Protection Act in 2023, this legislative framework may not comprehensively address the issue of unauthorized personal data collection without consumer consent.

-- The guidelines should align with global trends emphasizing users' free and informed consent in data protection laws. Legislation in the US and the EU, such as the California Consumer Privacy Rights Act, 2020, and the General Data Protection Act, incorporates measures to discourage dark patterns and protect consumer rights. Notably, Apple was fined €8 million under the French Data Protection Act for making the 'personalized advertisements' option the default without prior agreement and making changing the setting difficult through many steps.

-- By incorporating provisions defining limits on data collection and requiring explicit consent, the guidelines can enhance the legal framework and empower consumers, fostering trust in digital interactions.

 

5. Inflexibility of The Guidelines

A noteworthy concern within the guidelines revolves around the insufficient mechanisms for reporting and adaptation. Although the Guidelines offer a representative list of dark patterns, they ignore the fact that misleading methods in the digital realm are ever-changing. In light of this, the guidelines ought to implement a flexible feedback system that enables customers, members of the public, and industry participants to report new occurrences of dark patterns. This strategy is necessary to stay up to date with new misleading techniques and preserve the applicability of the rules.

 

Conclusion

In conclusion, the guidelines for the prevention and regulation of dark patterns introduced by the Central Consumer Protection Authority (CCPA) present a progressive step in addressing deceptive design practices. While acknowledging their commendable intent, the guidelines exhibit certain shortcomings.

However, the guidelines highlight the severity of penalties under the Consumer Protection Act of 2019, to strengthen the regulatory framework, there is a need for clearer definitions, specific penalty criteria, and alignment with global standards. Moreover, incorporating dynamic reporting mechanisms for evolving dark patterns would enhance the guidelines' responsiveness, ensuring a more comprehensive and adaptive approach to online consumer protection.

References:

*This article is authored by Rishita Yadav, Student of Symbiosis Law School, Noida and reviewed by Samiksha Biswakarma, Student of Symbiosis Law School, Noida.


コメント

bottom of page