• Mustafa Surka, Partner |
4 min read

The e-commerce industry in India has been growing profoundly and is expected to surpass the United States of America to become the second-largest e-commerce market in the world by 2034. India’s e-commerce industry is expected to reach US$ 111.40 billion by 2025[1].

Amid a rise in online shopping and an increase in the number of internet users, deceptive strategies have been potentially used by certain e-commerce players to intentionally manipulate or mislead users. These unethical strategies are designed to lead to exploiting cognitive and behavioral biases. For instance, e-commerce websites try to gain more sales through hidden costs, retrieve consumer personal data intrusively, increase attention time through addictive practices, among others. These deceptive and unethical practices are referred to as ‘Dark Patterns’ in the digital world. Dark Patterns in digital commerce is a serious issue as it affects the rights and interests of consumers. The Central Department of Consumer Affairs has urged online platforms to not engage in ‘unfair trade practices’ in their online interface to manipulate consumer choice and violate ‘consumer rights’.

As per the Guidelines on Prevention and Regulation of Dark Patterns issued under the section 18 of the Consumer Protection Act 2019, Dark Patterns are defined as the following:

  • Any practices or deceptive design patterns; designed to mislead or trick users to do something they originally did not intend or want to do.
  • Patterns that subvert or impair the consumer autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practice or violation of consumer rights.

The government has taken multiple steps as below to curb the use of Dark Patterns by online platforms, as they are considered unfair trade practices and violate consumer rights under the Consumer Protection Act,

  • The Consumer Protection (E-commerce) Rules, 2020 – Prohibits e-commerce entities from indulging in unfair trade practices.
  • Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 – Lays down conditions for “non-misleading and valid advertisements”.
  • The Digital Personal Data Protection Act, 2023 – States the requirement of free and unambiguous consent of individuals prior to the processing of their personal data.

Moreover, In September 2023, India’s department of consumer affairs issued detailed guidelines that define tactics that can be considered as Dark Patterns and the principles that online platforms should follow to ensure fair and transparent practices. The initiatives aim to protect interests of consumers and enhance their trust and confidence in online platforms.

Some common examples of Dark Patterns identified in the guidelines are as follows:

  • False Urgency – Creating a sense of either scarcity or limited time offer to pressurize consumers into buying a product or service quickly.
  • Subscription Traps – Making it easy for consumers to sign up for a service but hard for them to cancel it, often by hiding the cancellation option or requiring multiple/complicated steps to cancel it.
  • Basket Sneaking – Adding products or services to the consumer’s cart without their consent or knowledge.
  • Confirm Shaming – Using guilt or negative language to create a sense of guilt or fear in the mind of the consumer, to nudge the consumer to purchase the product or service from the platform.
  • Nagging – Consumers facing overload of requests or information unrelated, to their intention of visiting the platform and hence disrupts the consumer to perform the intended transaction of purchase of products or services.
  • Bait and switch – Promising one thing but delivering something else, such as advertising a product as free but charging for it later or showing a different price at checkout.
  • Drip pricing – Not showing the full price upfront but adding extra fees or charges subsequently in the process.
  • Disguised advertisement – Practice of posing, masking advertisements as other types of content such as user generated content or new articles or false advertisements.
  • Interface interference – Manipulating the consumer interface to misdirect a user from taking an action desired by the consumer.
  • Forced action – Forcing a consumer into an action to buy additional goods or services unrelated to the product or service originally intended by the consumer.

It is imperative that the government, organizations, and consumers need to work together to mitigate the impact of Dark Patterns. It is necessary that consumers are aware of the unfair marketing practices that fall under the terminology of Dark Patterns, rights of consumers and grievance redressal mechanism options available to them. This will protect and benefit the society at large. 

[1] Source - Indian E-commerce Industry Analysis | IBEF 

A version of this article was published on Dec 30, 2023  by ETRetail.com